1

The factual and procedural background of this case is

contained in this court's first denial of habeas relief in Weeks

v. Jones, 26 F.3d 1030, 1032-33 (11th Cir.1994), cert. denied, -- - U.S. ----, 115 S.Ct. 1258, 131 L.Ed.2d 137 (1995), and in the

United States Court of Appeals,

Eleventh Circuit.

No. 95-6676

Non-Argument Calendar.

Varnall WEEKS, Petitioner-Appellant,

v.

Ronald E. JONES, Commissioner of Corrections, RespondentAppellee.

Nov. 22, 1996.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CV-95-V-613-N), Robert E. Varner, Judge.

Before HATCHETT, Chief Judge, and TJOFLAT and BIRCH, Circuit

Judges.

PER CURIAM:

This appeal presents the first-impression issue for our

circuit of whether the right to appointment of counsel in capital

habeas corpus cases under 21 U.S.C. § 848(q)(4)(B) depends on the

ultimate merits of a death-sentenced prisoner's habeas claims.

After appointing counsel, the district judge sua sponte found that

the federal habeas petition was frivolous, set aside the

appointment order under Federal Rule of Civil Procedure 60(a), and

thereby prevented payment of the capital petitioner's attorneys.

We REVERSE.

I. BACKGROUND

The petitioner-appellant, Varnall Weeks, was executed on May

12, 1995.1 Preceding his execution, Weeks's attorneys2 challenged
denial of his second petition for habeas relief in Weeks v.

Jones, 52 F.3d 1559, 1560 (11th Cir.), cert. denied, --- U.S. ---

-, 115 S.Ct. 1841, 131 L.Ed.2d 846 (1995). 

 2

Weeks's attorneys, who originally were appointed and who

seek compensation for their representation, are James McMillin,

Stephen B. Bright and Barry J. Fisher. 

 3Weeks's counsel argued that he was a paranoid

schizophrenic, who went to his death convinced that it was part

of a millennial religious scheme to destroy sinful mankind and

that he would be transformed into a tortoise and reign over the

universe. 

 4On May 10, 1995, Weeks's counsel also filed motions for

appearance pro hac vice, temporary stay of execution, and

examination by mental health experts. 

his death sentence in state and federal court on the basis of his

mental incompetence to be executed.3 Because Weeks was indigent,

his attorneys represented him without any payment from their

client, and they received no compensation for their representation

from the State or courts of Alabama. Following the denial of

Weeks's second request for postconviction relief by the Alabama

courts, his counsel filed a petition for writ of habeas corpus in

federal court in the Middle District of Alabama on May 10, 1995, as

well as a motion requesting appointment as counsel under 21 U.S.C.

§ 848 and a motion to proceed in forma pauperis.4

 That same day,

the district court granted the motions for appointment of counsel

and to proceed in forma pauperis, but it denied Weeks's petition

for habeas relief on the merits and denied a stay.

On May 11, 1995, Weeks's counsel appealed the district court's

denial of a certificate of probable cause and sought a stay of

execution in this court. A majority panel addressed the merits of

his incompetency claim and concluded, based on the factfindings of

the state trial judge and the evidence presented at the state
evidentiary hearing, that Weeks was not mentally unfit to be

executed. Weeks v. Jones, 52 F.3d 1559, 1561-62 (11th Cir.), cert.

denied, --- U.S. ----, 115 S.Ct. 1841, 131 L.Ed.2d 846 (1995).

Accordingly, this court denied a stay of execution and a

certificate of probable cause. The dissent noted that Weeks's case

was the first time that our court had addressed the issue of the

constitutional standard for competency to be executed. Id. at

1574-75 (Kravitch, J., concurring in part and dissenting in part).

In July, 1995, Weeks's counsel contacted the district court

clerk's office because they had not yet received their vouchers

needed to submit fee requests. On August 2, 1995, the district

court sua sponte issued an order setting aside its previous order

appointing counsel for Weeks under § 848(q) "pursuant to Rule

60(a), Federal Rules of Civil Procedure." R2-22-2. In setting

aside his former order granting appointment of counsel, the

district judge explained his reconsideration resulting in his

denying the attorneys' former motion for appointment of counsel:

This Court was recently contacted by Petitioner's

attorneys regarding not having received their CJA 30 Vouchers

issued to appointed attorneys in death penalty proceedings.

In reviewing the file, this Court found on May 10, 1995, it

erroneously granted the Motion for Appointment of Counsel

filed May 10, 1995, by Attorneys James McMillin, Stephen B.

Bright and Barry J. Fisher. Also on May 10, 1995, this Court

correctly granted said attorneys' motion for admission pro hac

vice and correctly granted Petitioner leave to proceed in

forma pauperis in this Court. However, on May 11, 1995, this

Court denied Petitioner's request for a certificate of

probable cause based on this Court's finding that the grounds

upon which Petitioner was basing his appeal were frivolous and

that said appeal was not taken in "good faith" within the

meaning of Coppedge v. United States, 369 U.S. 438 [82 S.Ct.

917, 8 L.Ed.2d 21] (1962). During all of these proceedings,

it was this Court's intention to only allow Petitioner to

proceed in forma pauperis without having to pay a filing fee;

however, it was never the intention of this Court to appoint
 5

The Alabama Attorney General did not file a responsive

brief in this appeal. In a letter to the Clerk of the Eleventh

Circuit Court of Appeals, the Assistant Attorney General who

represented respondent-appellee, Commissioner of Corrections,

Ronald E. Jones, explained that, since Weeks's counsel sought

attorneys' fees from the federal government pursuant to a federal

statute and not respondent, Jones did not have a position on the

issue raised by Weeks's counsel in this court. 

 6

As a procedural matter, "[a]lthough a CPC is required in

order to appeal the denial of habeas corpus relief, there is no

such requirement in order to appeal the denial of the appointment

of counsel under § 848(q)(4)(B)." Barnard v. Collins, 13 F.3d

871; 878 n. 6 (5th Cir.), cert. denied, 510 U.S. 1102, 114 S.Ct.

946, 127 L.Ed.2d 363 (1994); accord Sterling v. Scott, 57 F.3d

451, 454 n. 3 (5th Cir.1995), cert. denied, --- U.S. ----, 116

S.Ct. 715, 133 L.Ed.2d 669 (1996) (noting that "[t]he same rule

should apply to the retention of such counsel"). 

 7This court has held that § 848(q)(4)(B) does not require

the federal government to finance counsel for the exhaustion of

postconviction claims in state court. In re Lindsey, 875 F.2d

1502 (11th Cir.1989) (per curiam). 

attorneys to represent the Petitioner.

Id. at 1-2 (emphasis in Italics added). This appeal from Weeks's

counsel ensued.5

II. ANALYSIS

 Under the Anti-Drug Abuse Act of 1988, § 7001(b), 21 U.S.C.

§ 848(q)(4)(B) (1988), Congress established an absolute right to

counsel for indigent death-sentenced prisoners seeking federal

habeas relief:

In any post conviction proceeding under section 2254 or

2255 or Title 28, seeking to vacate or set aside a death

sentence, any defendant who is or becomes financially unable

to obtain adequate representation ... shall be entitled to the

appointment of one or more attorneys....

21 U.S.C. § 848(q)(4)(B). 6

 "On its face, this statute grants

indigent capital defendants a mandatory right to qualified legal

counsel ... "[i]n any [federal] post conviction proceeding.' "7

McFarland v. Scott, 512 U.S. 849, ----, 114 S.Ct. 2568, 2571, 129
L.Ed.2d 666 (1994) (quoting 28 U.S.C. § 848(q)(4)(B)) (alteration

in original) (emphasis added). Because of the complexity of

federal habeas corpus jurisprudence, even for attorneys, and the

stringent pleading requirements, the Court recognized that "[a]n

attorney's assistance prior to the filing of a capital defendant's

habeas corpus petition is crucial" to adjudication of an indigent

capital petitioner's claims on the merits. Id. at ----, 114 S.Ct.

at 2572; see Sloan v. Delo, 54 F.3d 1371, 1380 n. 6 (8th Cir.1995)

("The McFarland Court held that because Congress created a

statutory right to counsel for capital defendants during federal

habeas proceedings, counsel should be appointed before a petition

is actually filed to permit assistance in its preparation."

(citing 21 U.S.C. § 848(q)(4)(B)), cert. denied, --- U.S. ----, 116

S.Ct. 728, 133 L.Ed.2d 679 (1996).

 Because § 848(q)(4)(B) mandates counsel for indigent capital

prisoners to prepare federal habeas petitions, a substantive,

merits assessment of the petition is irrelevant to the appointment

of counsel. 21 U.S.C. § 848(q)(4)(B); see McFarland, 512 U.S. at

----, 114 S.Ct. at 2572 ("In adopting § 848(q)(4)(B), Congress thus

established a right to preapplication legal assistance for capital

defendants in federal habeas corpus proceedings."); In re Joiner,

58 F.3d 143, 144 (5th Cir.1995) (per curiam) ("McFarland ... held

that 21 U.S.C. § 848(q)(4)(B) entitles prisoners seeking federal

habeas relief to court-appointed counsel for the preparation of a

habeas petition.... The Court ... reason[ed] that appointed

counsel ... are necessary to prepare and present federal habeas

cases effectively."). Thus, the district court's determination
 8

"[T]he purpose of the frivolity review is to filter

non-paying litigants' lawsuits through a screening process

functionally similar to the one created by the financial

disincentives that help deter the filing of frivolous lawsuits by

paying litigants." Cofield v. Alabama Pub. Serv. Comm'n, 936

F.2d 512, 515 (11th Cir.1991). 

 9In affirming the denial of Weeks's first habeas corpus

petition, we detailed his previous mental health history. Weeks

v. Jones, 26 F.3d at 1034-42. This court's opinion, pursuant to

Weeks's second appeal from denial of habeas relief, discussed the

that Weeks's habeas petition was frivolous after his execution is

inconsequential to the appointment of his counsel. See In re

Joiner, 58 F.3d at 144 ("McFarland addressed the timing of

appointment of counsel, not the scope of appointment.").

Furthermore, the Supreme Court has explained that indigent

litigants' claims are "frivolous" when they "lack[ ] an arguable

basis either in law or in fact."8 Neitzke v. Williams, 490 U.S.

319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989).

"Factual allegations are frivolous for purpose of § 1915(d) when

they are "clearly baseless;' legal theories are frivolous when

they are "indisputably meritless.' " Battle v. Central State

Hosp., 898 F.2d 126, 129 (11th Cir.1990) (per curiam) (quoting

Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833). This court also has

held that a frivolous analysis under 28 U.S.C. § 1915(d) involves

a determination of " "whether there is a factual and legal basis,

of constitutional dimension, for the asserted wrong.' " Clark v.

Georgia Pardons & Paroles Bd., 915 F.2d 636, 639 (11th Cir.1990)

(quoting Harris v. Menendez, 817 F.2d 737, 739 (11th Cir.1987))

(emphasis added).

 Rather than being baseless, Weeks's history of mental health

evaluation and treatment is documented in the record,9

 and he based
merits of Weeks's contention that he was incompetent to be

executed, Weeks, 52 F.3d at 1561-62, and included, as an

appendix, the state trial court's factual findings and legal

conclusions following a thorough evidentiary hearing on the

competency-to-be-executed issue, id. at 1562-74. 

 10We note that the district court based its determination

that Weeks's second habeas petition was frivolous on Coppedge and

did not cite the Court's subsequent statement on frivolous

indigent claims under § 1915 in Neitzke. Importantly, the

district court did not address § 848(q)(4)(B), which mandates

counsel to assist indigent prisoners in filing habeas petitions

in capital cases. 

his second habeas appeal on his incompetency to be executed under

Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335

(1986) (plurality opinion). While other circuits have "adopted

different legal definitions of Eighth Amendment mental competency

for execution" following Ford, the dissent notes that this circuit

"addresses this issue for the first time in this case." Weeks, 52

F.3d at 1574, 1575 (Kravitch, J., concurring in part and dissenting

in part). In raising the competency-to-be-executed issue, Weeks's

counsel stated a arguable constitutional claim, which had not been

decided by this court and which precluded the district court's

reconsidered determination that Weeks's second habeas petition was

frivolous after Weeks's execution.10 A claim that is arguable,

although ultimately unsuccessful, "must be treated like the claims

brought by paying litigants and should survive frivolity review."

Cofield v. Alabama Pub. Serv. Comm'n, 936 F.2d 512, 515 (11th

Cir.1991).

Significantly, the statute specifically contemplates that a

capital inmate shall have federally appointed counsel in habeas

proceedings involving competency to be executed. 21 U.S.C. §
 11With respect to assistance from appointed counsel for

indigent capital prisoners during judicial proceedings, including

competency, the statute provides:

Unless replaced by similarly qualified counsel

upon the attorney's own motion or upon motion of the

defendant, each attorney so appointed 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) (emphasis added). 

848(q)(8).11 In a successive death penalty case that raised

competency to be executed, the Fifth Circuit reversed the district

court's denial of appointment of counsel under § 848(q)(4)(B) and

explained that "[o]n its face, § 848(q)(4)(B) does not condition

the appointment of counsel on the substantiality or

nonfrivolousness of petitioner's habeas claims." Barnard v.

Collins, 13 F.3d 871, 879 (5th Cir.), cert. denied, 510 U.S. 1102,

114 S.Ct. 946, 127 L.Ed.2d 363 (1994). In connection with Weeks's

habeas petition, the district court correctly appointed Weeks's

counsel, who had represented him in his state postconviction

proceedings as well as prepared his habeas petition without

compensation. The district court erred in revisiting its former

ruling based on its assessment of the merits of Weeks's habeas

petition after his execution.

 Finally, the district court erroneously based its sua sponte

order that denied Weeks's counsels' appointment on Federal Rule of
 12Interestingly, the district judge did not consider Weeks's

petition for habeas corpus relief frivolous when he granted

counsels' motion for appointment on the same day that the habeas

petition was filed. Furthermore, the district judge ruled

inconsistently in the challenged order, issued sua sponte after

Weeks's execution and his attorneys' attempt to obtain

compensation. He stated that he correctly granted counsels'

motion for admission in that court pro hac vice for the sole

purpose of representing Weeks, but that he erroneously granted

their motion for appointment of counsel because the habeas

petition was frivolous, and that he never intended to appoint

attorneys to represent Weeks. 

Civil Procedure 60(a), which permits corrections "at any time" of

"[c]lerical mistakes" in judgments and orders "arising from

oversight or omission." Fed.R.Civ.P. 60(a). While the district

court may correct clerical errors to reflect what was intended at

the time of ruling, "[e]rrors that affect substantial rights of the

parties ... are beyond the scope of rule 60(a)." 12 Mullins v.

Nickel Plate Mining Co., 691 F.2d 971, 973 (11th Cir.1982) (citing

Warner v. City of Bay St. Louis, 526 F.2d 1211, 1212 (5th

Cir.1976)); see United States v. Whittington, 918 F.2d 149, 150 n.

1 (11th Cir.1990) (noting that "for Rule 60(a) purposes, a mistake

of law is not a "clerical mistake,' "oversight,' or "omission' "

(quoting Warner, 526 F.2d at 1212)); see also Truskoski v. ESPN,

Inc., 60 F.3d 74, 77 (2d Cir.1995) (per curiam) ("That provision,

which states in pertinent part that "[c]lerical mistakes in

judgments ... may be corrected by the court at any time,' permits

only a correction for the purpose of reflecting accurately a

decision that the court actually made." (quoting Fed.R.Civ.P.

60(a)). "Although Rule 60(a) clerical mistakes need not be made by

the clerk, they must be in the nature of recitation of amanuensis

mistakes that a clerk might make. They are not errors of
substantive judgment." Jones v. Anderson-Tully Co., 722 F.2d 211,

212 (5th Cir.1984) (per curiam) (emphasis added); see Paddington

Partners v. Bouchard, 34 F.3d 1132, 1140 (2d Cir.1994) ("An error

in a judgment that accurately reflects the decision of the court or

jury as rendered is not "clerical' within the terms of Rule 60(a)."

(quoting Fed.R.Civ.P. 60(a)). "A district court is not permitted,

however, to clarify a judgment pursuant to Rule 60(a) to reflect a

new and subsequent intent because it perceives its original

judgment to be incorrect." Burton v. Johnson, 975 F.2d 690, 694

(10th Cir.1992), cert. denied, 507 U.S. 1043, 113 S.Ct. 1879, 123

L.Ed.2d 497 (1993). Therefore, the district court not only erred

legally in its subsequent sua sponte denial of Weeks's counsels's

appointment motion, but also it erred procedurally in using Rule

60(a) as authority for its changed ruling.

III. CONCLUSION

Weeks's postconviction counsel appeal the district court's

subsequent, sua sponte denial of their motion for appointment of

counsel when they sought payment for their federal habeas

representation of Weeks, after the court previously had granted

this motion. Because the district court erred legally and

procedurally in denying Weeks's counsels' appointment motion, we

REVERSE. We direct the district court to reinstate its former

order granting Weeks's counsels' appointment motion and to proceed

with compensating them appropriately for their habeas

representation of Weeks.