King v. Moore, No. 02-13717 Non-Argument Calendar.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Per Curiam
• Citation: 312 F.3d 1365
• Parties: Amos Lee KING, Petitioner-Appellant, v. Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee.
• Docket Number: No. 02-13717 Non-Argument Calendar.
• Decision Date: 02 December 2002

312 F.3d 1365 Amos Lee KING, Petitioner-Appellant,
v.
Michael W. MOORE, Secretary, Florida Department of Corrections, Respondent-Appellee. No. 02-13717 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. December 2, 2002.

Michael John Benza, Jeffry F. Kelleher & Assoc. Co., Cleveland, OH, Mark E. Edwards (Court-Appointed), Durham, NC, Grady Charles Irvin, Jr. (Court-Appointed), Tampa, FL, for Petitioner-Appellant.

Carol M. Dittmar, Dept. of Legal Affairs, Tampa, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON, Chief Judge, and BLACK and MARCUS, Circuit Judges.

PER CURIAM:

The issue in this case is whether 21 U.S.C. § 848(q) entitles state prisoners to federally appointed, federally funded counsel to represent them in their state clemency

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proceedings. We answer this question "no."

Section 848(q)(4)(B) authorizes, for any indigent defendant, the appointment of counsel in any post conviction proceeding under 28 U.S.C. § 2254, seeking to vacate or to set aside a state death sentence, as well as under 28 U.S.C. § 2255 for federal death sentences. Section 848(q)(4)(B) also provides that a defendant is entitled to "the furnishing of such other services in accordance with paragraphs (5), (6), (7), (8), and (9)." Id. Section 848(q)(8) provides that attorneys so appointed can do different things:

shall represent the defendant throughout every subsequent stage of available judicial proceedings, including pretrial proceedings, trial, sentencing, motions for new trial, appeals, applications for writ of certiorari to the Supreme Court of the United States, and all available post-conviction process, together with applications for stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.

21 U.S.C. § 848(q)(8).

In 1992, King filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 in the district court and was appointed counsel.¹ The district court denied the petition, and we affirmed. See King v. Moore, 196 F.3d 1327 (11th Cir.1999), cert. denied, 531 U.S. 1039, 121 S.Ct. 631, 148 L.Ed.2d 539 (2000).

In July 2002, King, in the district court, filed a motion for appointment of counsel; invoking 21 U.S.C. § 848(q)(4)(B), he sought counsel to represent him in his state clemency proceedings. King asserted that, during his previous federal habeas proceedings he had been represented by counsel appointed pursuant to § 848(q), but that this counsel was prohibited by state statute from representing King in state clemency proceedings. King, then, requested that the district court appoint new counsel to prepare King's state clemency application. The district court denied the motion. King appeals.

This case hangs on the interpretation of a federal statute: 21 U.S.C. § 848(q). The interpretation of a statute is a question of law which this Court reviews de novo. United States v. Pistone, 177 F.3d 957, 958 (11th Cir.1999).

We agree with the Fifth Circuit that § 848(q)(4)(B) should be construed narrowly, and we agree with that Circuit's conclusion that the statute does not authorize federal compensation for representation in state clemency proceedings.² See Clark v. Johnson, 278 F.3d 459, 460 (5th Cir.2002); see also Sterling v. Scott, 57 F.3d 451, 456-58 (5th Cir.1995). This legal position is consistent with our dicta in In re Lindsey, 875 F.2d 1502, 1506-07 (11th Cir.1989): "[w]e cannot agree that ... subsection 848(q)(8), encompass[es] ... any proceedings convened under the...