* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 94-11163

DAVID WAYNE STOKER,

Petitioner-Appellant,

versus

WAYNE SCOTT, Director, Texas

Department of Criminal Justice,

Institutional Division,

Respondent-Appellee.

________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

(92-CV-148)

________________________________________________

October 25, 1996

Before GARWOOD, JONES and EMILIO GARZA, Circuit Judges. *

GARWOOD, Circuit Judge:

Attorney Stephen Latimer (Latimer) appeals the district

court’s order set ting attorneys’ fees for his representation of

David Wayne Stoker (Stoker) throughout the course of his federal

habeas proceedings. We vacate and remand.

Facts and Proceedings Below

Latim er began representing Stoker in December 1990 as a1 This total included 26.4 hours of in-court time and 220.8

hours of out-of-court time.

2 volunteer and served as his counse l during state habeas

proceedings, unsuccessfully challenging Stoker’s Texas capital

murder conviction and death sentence. On November 5, 1992, the

magistrate judge appointed Latimer to represent Stoker as of July

2, 1992, the day that Stok er’s federal habeas petition, which

Latimer had researched and drafted, was filed with the district

court. On August 31, 1992, Latimer filed a memorandum in support

of the federal habeas petition, and he filed an amended petition on

October 23, 1992. Latimer also prepared for an evidentiary hearing

before the magistrate judge which was held on May 19 and 20 of

1993. On July 11, 1994, after Latimer had submitted post-hearing

briefs and motions, the magistrate judge recommended that Stoker’s

requested habeas relief be denied. Latimer then filed objections

to the magistrate judge’s report with the district court on

September 23, 1994. On October 19, 1994, the district court

adopted the magistrate judge’s recommendation and dismissed

Stoker’s petition with prejudice. A motion to alter and amend the

judgment was denied on November 4, 1994.

On November 14, 1994, Latimer filed a motion for increased

fees, seeking a total fee of $30,900 for 247.2 hours of work based

on an hourly rate of $125. 1 In calculating the fee award, the

magistrate judge deducted the hours that Latimer had spent in

preparing Stoker’s state habeas petition reasoning that “this Court3

has neither an obligation nor the authority to pay Mr. Latimer for

work he did while the matter was pending before the state trial

court.” After subtracting the time attributable to Stoker’s state

habeas proceedings, the magistrate judge calculated Latimer’s outof-court time to be 140.9 hours. The magistrate judge then reduced

the time attributable to legal research from 80.85 hours to 40.85

hours “based upon a consideration of the amount of hours which were

required by the U.S. Magistrate Judge t o legally research the

problems in this case.” As a consequence, the magistrate judge

reduced Latimer’s out-of-court time from 22 0.8 to 100.9 hours.

Latimer’s court time duri ng the course of prosecuting Stoker’s

federal habea s petition was 10.1 hours. Although the magistrate

judge did not specify the hourly rate in his recommendation, it

appears that he employed an in-co urt rate of $60 per hour and an

out-of-court rate of $40 per hour, resulting in an award of $4,642

in attorneys’ fees and expenses. The magistrate attributed $606 of

this total to in-court time and $4,036 for out-of-court time.

Latimer filed objections to the magistrate judge’s report on

December 1, 1994. Latimer asserted in these objections that he was

entitle d to fees of $125 per hour for both in-court and out-ofcourt time for representation in a capital case, although he

indicated that he did not obje ct to reductions of 39.5 hours in

out-of-court time and 16.3 hours for in-court time attributable to

the preparation and prosecution of the state habeas petition.

Nevertheless, Latimer asserted that he was entitled to additional4

compensation for time spent prior to his July 2, 1992, appointment

because it was “essential to the preparation and prosecution of the

federal claims.” Latimer also challenged the magistrate judge’s

reduction in billable time for research and writing from 80.85

hours to 40.85 hours. Finally, Latimer sought $75 an hour for 95

hours of work for attorney Virginia Lindsay, who had assisted him

in investigation and research, for a total of $7,125. Latimer

a cknowledged that he had wholly omitted Lindsay’s time from his

application for increased fees.

On Dec ember 2, 1994, the district court overruled Latimer’s

objections and adopted the recommendation of the magistrate judge,

approving an award of $4,642 in fees and expens es. Latimer now

brings this appeal.

Discussion

I. Hourly Rate

The award of attorneys’ fees in a federal capital cases is

governed by 21 U.S.C. § 848(q)(10) which provides:

“(10)Notwithstanding the rates and maximum limits

gene rally applicable to criminal cases and any other

provision of law to the contrary, the court shall fix the

compensation to be paid to attorneys appointed under this

subsect ion . . . at such rates or amounts as the court

determ ines to be reasonably necessary to carry out the

requirements of paragraphs (4) through (9).”

The United States Judicial Conference has developed guidelines to

aid in the application of section 848, which we note have been

cited with approval by the United States Supreme Court in

interpreting this section. S ee In re Berger

, 111 S.Ct. 628 (1991).2 See 18 U.S.C. § 3006A(d)(1)(setting hourly rate at $60 for incourt time and $40 for out-of-court time).

5 Section 6.02(A) of these Guidelines provides “an attorney appointed

to represent a defendant charged with a federal capital crime or

seeking to vacate or set aside a death sentence in a proceeding

under section 2254 or 2255 of title 28, U.S.C., shall be

compensated at a rate and in an amount determined exclusively by

the presiding judicial officer to be reasonably necessary to obtain

qualified counsel to represent the defendant, without regard to CJA

hourly rates or compensatio n maximums.” V II Guidelines For

Administration of Criminal Justice Act § 6.02(A). We note that the

Guidelines further urge that counsel in capital cases be

compensated “at a rate and in an amount sufficient to cover

appointed counsel’s general office overhead and to ensure adequate

compensation for representation provided,” but recommend that fees

be limited to an hourly rate of between $75 and $125 for both incourt and out-of-court time. Id. § 6.02(B).

As it appears that the magistrate judge believed himself to be

constrained by the fee structure set forth in the Criminal Justice

Act, 2 we vacate the distric t court’s December 2, 1994, order and

remand this matter to the district court for determination of the

proper hourly rate within the parameters set forth in the Judicial

Conference Guidelines.

II. Prefiling Investigative Work and Research

Latimer, relying on McFarland v. Scott

, 114 S.Ct. 2568 (1994),6

urges that he is entitled to compensation for 39.4 hours of work

done prior to the filing of Stoker’s federal habeas petition.

Specifically, Latimer seeks compensation for 8 hours of interviews,

2.5 hours of obtaining and reviewing records, 6 hours of legal

research and brief writing, and 22.9 hours of travel time. Latimer

argues that this investigation and research disclosed important

evidence which was essential to the preparation of Stoker’s federal

habeas petition. However, Latimer concedes that the information

discovered during these hours was also used to advance the state

habeas proceedings.

McFarland , upon which Latimer relies, holds that 21 U.S.C. §

848(q)(4)(B) “established a right to preapplication legal

assistance for capital defendants in federal habeas corpus

proceedings.” I d

. at 2572. The Court reasoned that “[t]his

interpretation is the only one that gives meaning to the statute as

a practical matter” in light of the need for appointed counsel and

experts in order to effectively present a habeas petition. I d

.

However, this Court has held that McFarland addresses only the

issue of timing of appointed counsel and not the scope of that

appointment, and that therefore section 848(q)(4)(B) provides for

the appointment of counsel after the conclusion of state court

proceedings. S terling v. Scott

, 57 F.3d 451, 457 (5th Cir.), cert.

denied , 116 S.Ct. 715 (1995). See also In re Joiner

, 58 F.3d 143

(5th Cir. 1995)(holding inmate had no right to federally appointed

counsel or experts to exhaust state remedies). As Latimer concedes7

that much of this work occurred between December 1990 and July 1992

during the prosecution of the state habeas petiti on, these

authorities dictate that Latimer is not entitled to compensation

for prefiling work performed during this period. Moreover, we do

not read McFarland as construing section 848(q)(4)(B) to mandate,

or even authorize, fees for services rendered b efore both the

filing of a request in federal court for appointment of counsel and

t he filing of a federal habeas petition. S ee id

. at 2572- 73 (“a

‘post-conviction proceeding’ within the meaning of section

848(q)(4)(B) is commenced by the filing of a death row defendant’s

motion requesting the appointment of counsel for his federal habeas

corpus proceeding”). Here no motion was filed in federal court

seeking appointment of (or compensation for) counsel prior to the

tendering of the federal habeas petition on July 2, 1992, and hence

there was no entitlement to fees for services rendered prior to

that date.

W ith respect to Latimer’s challenge to the reduct ion of

research time included in the fee award from 80.85 hours to 40.85

hours, we will not disturb the judgment of the district court. The

magistrate judge whose recommendations were adopted is much better

placed than are we to assess the amount of research required to

develop federal habeas claims in a case in which he presided over

the federal evidentiary hearings. We do not find the reductions to

be unreasonable.

As to Latimer’s request for compensation for the work8

performed by Virginia Lindsay for assistance in respect to the

federal habeas proceedings, we find no er ror as Latimer concedes

that this request was not presented in his application for

i ncreased fees nor until after the magistrate judge had rende red

his report and recommendation. However, we do not preclude the

court below from considering the award of such fees (to the extent

they are for work on or after July 2, 1992) on remand should it, in

its discretion, elect to do so.

Accor dingly, the district court’s order awarding fees and

expenses is hereby

VACATED AND REMANDED.