Joiner, In re, 95-10376

• Decision Date: 27 June 1995
• Docket Number: No. 95-10376,95-10376
• Citation: 58 F.3d 143
• Parties: In re Orien Cecil JOINER, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 143

58 F.3d 143

In re Orien Cecil JOINER, Petitioner.

No. 95-10376.

United States Court of Appeals, Fifth Circuit.

June 27, 1995.

Robert Nelson Nebb, Richard R. Gore, Lubbock, TX, for appellant.

Dan Morales, Atty. Gen., Margaret Portman Griffey, Asst. Atty. Gen., Austin, TX, for appellee.

On Petition for Writ of Mandamus to the United States District Court for the Northern District of Texas.

Before KING, HIGGINBOTHAM and BARKSDALE, Circuit Judges.

PER CURIAM:

Orien Joiner was convicted of capital murder and sentenced to death in Texas state court. The Texas Court of Criminal Appeals affirmed his conviction, and the U.S. Supreme Court denied certiorari. Joiner filed pro se motions for stay of execution in state court, but the Texas District Court and Court of Criminal Appeals denied the motions and refused to appoint an attorney for state habeas proceedings. Applying McFarland v. Scott, --- U.S. ----, 114 S.Ct. 2568 129 L.Ed.2d 666 (1994), the U.S. District Court for the Northern District of Texas appointed counsel to prepare Joiner's federal habeas petition. Seeking to develop claims that had not been presented to the state courts, appointed counsel asked the magistrate to authorize investigative and expert assistance under 21 U.S.C. Sec. 848(q)(9). The magistrate denied the motion, and the district judge overruled Joiner's objections to the magistrate's order. Joiner seeks review in this court via petition for writ of mandamus. We deny the petition.

Joiner concedes that he failed to exhaust state remedies by first presenting all of the claims he now raises to a state court. He nevertheless argues that he has a right to federal counsel, including investigative and expert assistance, to help him exhaust his state habeas remedies. He relies on McFarland, which held that 21 U.S.C. Sec. 848(q)(4)(B) entitles prisoners seeking federal habeas relief to court-appointed counsel for the preparation of a habeas petition. --- U.S. at ----, 114 S.Ct. at 2572. The issue in that case was whether the statutory right to appointed counsel attaches before a prisoner files a federal habeas petition. Id. at ----, 114 S.Ct. at 2571-72. The Court answered that question in the affirmative, reasoning that appointed counsel and experts are necessary to prepare and present federal habeas cases effectively. Id. at ----, 114 S.Ct. at 2572.

McFarland did not decide whether the statutory right to appointed counsel in "every subsequent stage of available judicial proceedings" extended to state collateral review. 21 U.S.C. Sec. 848(q)(8). In other words, McFarland addressed the timing of appointment of counsel, not the scope of appointment. We settled the latter issue in Sterling v. Scott, 57 F.3d 451 (5th Cir.1995). Sterling involved a federal habeas petitioner who relied on McFarland in seeking federally appointed counsel to exhaust his claims in state postconviction proceedings. We held that McFarland resolved only the issue of timing, leaving open the meaning of 21 U.S.C. Sec. 848(q)(8). Sterling went on to decide that, read as a whole, the statute provides counsel only for proceedings after the end of state court proceedings. We are bound by...