Pena-Calleja v. Ring
Decision Date | 26 July 2013 |
Docket Number | No. 12–3487.,12–3487. |
Parties | Javier PENA–CALLEJA, Petitioner–Appellant v. Melissa RING, Respondent–Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Javier Pena–Calleja, Fulton, MO, pro se.
Kameron Mitchell Lawson, Attorney General's Office, Jefferson City, MO, for Respondent–Appellee.
Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges.
[Published]
Javier Pena–Calleja appeals the district court's denial of his motion to appoint counsel to represent him in his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court's order denying appointment of counsel was not a final order, nor was it appealable under the collateral order doctrine. Therefore, we dismiss Pena–Calleja's appeal for lack of jurisdiction.
The district court's order denying appointment of counsel did not offer a ruling on the merits of Pena–Calleja's petition. Thus, it was not a final order, and we generally lack jurisdiction over appeals of non-final orders. 28 U.S.C. § 1291; Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) () (internal quotation marks omitted). However, the collateral order doctrine provides for a narrow exception to this final judgment rule if the non-final order (1) “conclusively determine[s] the disputed question,” (2) “resolve[s] an important issue completely separate from the merits of the action,” and (3) is “effectively unreviewable on appeal from a final judgment.” Flanagan v. United States, 465 U.S. 259, 265, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (quoting Livesay, 437 U.S. at 468, 98 S.Ct. 2454).
Interlocutory appeals of orders denying appointment of counsel in habeas proceedings do not fall within the collateral order doctrine for at least two reasons. First, the district court's denial of appointment of counsel is not a conclusive determination; the district court may still appoint counsel for Pena–Calleja at a later time. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.1983) (per curiam) ( ). Second, the denial of a motion to appoint counsel is clearly reviewable on appeal of a final order. See, e.g., Morris v. Dormire, 217 F.3d 556, 558–59 (8th Cir.2000) ( ); McCall v. Benson, 114 F.3d 754, 755–56 (8th Cir.1997) ( ). Thus, a district court's order denying appointment of counsel in habeas proceedings does not fall within the collateral order doctrine's narrow exception to the final judgment rule.
Our circuit has not previously published an express ruling on this issue, but other circuits to address the question have held that orders denying appointment of counsel are not immediately appealable in the context of habeas proceedings. See, e.g., United States v. Yousef, 395 F.3d 76, 77 (2d Cir.2005) (per curiam) ( ); Thomas v. Scott, 47 F.3d 713, 715–16 (5th Cir.1995) ( ); Weygandt v. Look, 718 F.2d 952, 953 (9th Cir.1983) ( )(internal quotation marks omitted). We join those circuits and hold an order denying appointment of counsel in a habeas proceeding is not immediately appealable.1
We dismiss Pena–Calleja's appeal for lack of jurisdiction.
1. We have previously exercised jurisdiction over non-final orders denying appointment of counsel in Title VII and § 1983 cases. See, e.g., Nelson...
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