Case: 21-40686 Document: 00516421935 Page: 1 Date Filed: 08/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 5, 2022
No. 21-40686
Lyle W. Cayce
Clerk
Billy Tracy,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:20-CV-156
Before Clement, Graves, and Costa, Circuit Judges.
James E. Graves, Jr., Circuit Judge:
Primarily at issue is whether our court has jurisdiction under the
collateral-order doctrine over an appeal challenging the denial of a pro se
motion to substitute federal habeas counsel. We do not. This case is therefore
DISMISSED.
I. FACTUAL HISTORY
Billy Joel Tracy was convicted of capital murder and sentenced to
death for killing a correctional officer at the Telford Unit of the Texas
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No. 21-40686
Department of Corrections. His conviction and sentence were subsequently
affirmed on direct appeal. Tracy v. State, 597 S.W.3d 502, 508, 516 (Tex.
Crim. App. 2020). He sought unsuccessfully state post-conviction relief. Ex
parte Tracy, No. WR-86,669-02,
2020 WL 5808144, at *1 (Tex. Crim. App.
Sept. 30, 2020) (denying application).
Tracy then filed, through state habeas counsel, a motion for
appointment of counsel, under 18 U.S.C. § 3599(a)(2) (counsel for financially
unable defendants), to assist him in preparing a petition for federal habeas
relief. He specifically requested the appointment of an attorney located in
Pennsylvania and the Capital Habeas Unit of the Western District of Texas.
He contended both were qualified to represent him. The district court
granted the motion, in part, but declined to appoint Tracy’s requested
counsel. Instead, the court appointed an attorney that Tracy had not
requested in his motion, and later appointed as co-counsel another attorney
Tracy had not requested.
In July 2021, Tracy filed a pro se motion to substitute his court-appointed counsel under § 3599, asserting, inter alia: a “complete lack of
adequate representation and failure to communicate”; and the counsel he
had initially requested the court appoint were “much better qualified.” In
addition to renewing his request for the court to appoint his previously
requested counsel, he also asked the court to appoint his state habeas counsel.
The court denied Tracy’s motion, holding he had not offered a
sufficient basis for substituting counsel because the court appointed conflictfree counsel who were competent to handle death-penalty matters. The court
noted that it would not appoint Tracy’s “potentially conflicted” state habeas
counsel to represent him in his federal habeas proceeding.
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Tracy appealed the court’s interlocutory order. After filing his notice
of appeal, he filed, through his court-appointed counsel, a petition for writ of
habeas corpus, pursuant to 28 U.S.C. § 2254.
II. DISCUSSION
The salient issue is whether our court has jurisdiction under the
collateral-order doctrine to review the denial of Tracy’s pro se motion to
substitute federal habeas counsel. No authority need be cited for the wellsettled proposition that our court has jurisdiction to determine our own
jurisdiction.
Tracy asserts our court has jurisdiction under the collateral-order
doctrine because, although the court’s order is not final, it satisfies all three
of the doctrine’s requirements and delaying appellate review would harm his
right to counsel under § 3599. Director Lumpkin counters, inter alia, the
collateral-order doctrine does not vest our court with jurisdiction.
Our court has jurisdiction generally over final decisions of a district
court. 28 U.S.C. § 1291; Henry v. Lake Charles Am. Press, L.L.C.,
566 F.3d
164, 170–71 (5th Cir. 2009) (noting “there has been a firm congressional
policy against interlocutory or ‘piecemeal’ appeals” (citation omitted)). Our
authority to review district-court decisions under § 1291 “includes appellate
jurisdiction over a narrow class of decisions that do not terminate the
litigation, but are sufficiently important and collateral to the merits that they
should nonetheless be treated as final[.]” Will v. Hallock,
546 U.S. 345, 347
(2006) (citation omitted).
This narrow rule is called the collateral-order doctrine. Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009). Under that rule, non-final
orders are immediately appealable if they: (1) “conclusively determine the
disputed question”; (2) “resolve an important issue completely separate
from the merits of the action”; and (3) “[are] effectively unreviewable on
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appeal from a final judgment[.]” Will, 546 U.S. at 349 (citation omitted);
Kershaw v. Shalala,
9 F.3d 11, 14 (5th Cir. 1993). The doctrine serves as a
“practical construction” of § 1291 and, accordingly, “do[es] not go against
the grain of § 1291, with its object of efficient administration of justice in the
federal courts.” Digit. Equip. Corp. v. Desktop Direct, Inc.,
511 U.S. 863, 867–
68 (1994) (describing doctrine’s prongs as “stringent”).
Our court has not decided previously whether the denial of a motion
to substitute federal habeas counsel is reviewable under the collateral-order
doctrine. We need not consider whether the court’s order satisfies the first
two prongs of the doctrine because, even assuming it does, the third prong—
that the order “be ‘effectively unreviewable’ [on appeal from a] final
judgment”—is not satisfied. See id. at 869.
The effectively unreviewable prong hinges on “whether delaying
review until the entry of final judgment would imperil a substantial public
interest or some particular value of a high order.” Vantage Health Plan, Inc.
v. Willis-Knighton Med. Ctr., 913 F.3d 443, 449 (5th Cir. 2019) (citation
omitted). This prong is narrow, however, because “almost every . . . order
might be called ‘effectively unreviewable’ in the sense that relief from error
can never extend to rewriting history.” Digit. Equip. Corp.,
511 U.S. at 872.
Accordingly, a non-final decision is not “effectively unreviewable” if it “may
burden litigants in ways that are only imperfectly reparable by appellate
reversal of a final district court judgment.” Mohawk,
558 U.S. at 107 (quoting
Digit. Equip. Corp.,
511 U.S. at 872).
Tracy’s challenge to the denial of his pro se motion to substitute
federal habeas counsel would not be effectively unreviewable on appeal from
a final judgment. Certainly, our court has reviewed challenges to the denial
of a motion to substitute counsel on appeal from a final judgment. E.g., United
States v. Minor, 714 F.3d 319 (5th Cir. 2013) (per curiam) (reviewing
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challenge under 18 U.S.C. § 3006A(c)); United States v. Fields, 483 F.3d 313
(5th Cir. 2007) (reviewing challenge that court failed to appoint unconflicted
counsel). And, the Eleventh Circuit has spoken on the issue raised by Tracy,
holding that a motion to substitute habeas counsel in a § 2254 proceeding is
not reviewable under the collateral-order doctrine. See Crain v. Sec’y, Fla.
Dept. of Corr.,
918 F.3d 1294, 1296 (11th Cir. 2019) (per curiam).
We have held that a motion to appoint counsel in a proceeding for
habeas relief under 28 U.S.C. § 2254 does not fall within the collateral order
doctrine because the decision is not unreviewable on appeal. Thomas v. Scott,
47 F.3d 713, 715–16 (5th Cir. 1995) (noting “special aspect of habeas corpus
litigation is the general requirement that it be promptly disposed of” and
“[i]nterlocutory appeals can only serve to delay disposition of such cases”).
The Supreme Court has held the same is true for the denial of a motion to
disqualify counsel in a civil proceeding. Firestone Tire & Rubber Co. v. Risjord,
449 U.S. 368, 376 (1981). The following also fail to meet the collateral-order
doctrine’s requirements: an order granting disqualification of counsel in a
civil proceeding, Richardson-Merrell, Inc. v. Koller,
472 U.S. 424 (1985); and
an order denying disqualification of counsel in a criminal proceeding,
Flanagan v. United States,
465 U.S. 259 (1984) (noting departure from finaljudgment rule permissible “only when observance of it would practically
defeat the right to any review at all” (citation omitted)). Analogous
precedent supports the conclusion that the order here does not fall within the
scope of the collateral order doctrine.
III. CONCLUSION
Our court lacks jurisdiction under the collateral-order doctrine to
review the denial of Tracy’s pro se motion to substitute his federal habeas
counsel.
DISMISSED.
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