United States Court of Appeals

for the Fifth Circuit

No. 21-40686

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 

United States Court of Appeals

Fifth Circuit

FILED

August 5, 2022

Lyle W. Cayce

Clerk

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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 courtappointed 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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