IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

S))))))))))))))Q

No. 94-20344

Summary Calendar

S))))))))))))))Q

RICHARD EARL THOMAS,

Petitioner-Appellant,

versus

WAYNE SCOTT,

Director, Texas Department of

Criminal Justice, Institutional Division,

Respondent-Appellee.

S))))))))))))))))))))))))Q

Appeal from the United States District Court for the

Southern District of Texas

S))))))))))))))))))))))))Q

(March 3, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Richard Earl Thomas (Thomas) brought the

instant habeas corpus petition under 28 U.S.C. § 2254, pro se,

challenging his Texas conviction and incarceration for the felony

offense of unauthorized use of a motor vehicle, with punishment

enhanced by two prior felonies. He was allowed to proceed in forma

pauperis. After the state filed its answer and motion for summary

judgment, Thomas filed a motion for appointment of counsel, to

which the state then filed an opposition. Thomas filed a reply to

the opposition. The district court entered an order denying the
2

motion for appointment of counsel. Within thirty days thereafter,

Thomas filed a notice of appeal from that order. He also sought a

certificate of probable cause. The district court denied the

certificate of probable cause and also entered an order explaining

that the type and complexity of the case did not require the

assistance of counsel and that Thomas had demonstrated an ability

to adequately present his case. So far as the record reflects, no

determination has been made as to whether there will be an

evidentiary hearing or whether there will be any discovery. No

ruling on the merits of Thomas's habeas application has been made,

and it remains pending in the court below.

The threshold issue before us, which we must notice on our own

motion, is whether we have jurisdiction of this appeal. See Mosley

v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Since Thomas's habeas

case remains pending in the district court, and no final decision

on it has been made, it is plain that we do not have jurisdiction

under 28 U.S.C. § 1291. A decision is final and hence appealable

for purposes of section 1291 if it "'ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.'" Coopers & Lybrand v. Livesay, 98 S.Ct. 2454, 2457

(1978) (quoting Catlin v. United States, 65 S.Ct. 631, 633 (1945)).

The real question is whether we have jurisdiction over this

interlocutory appeal under the collateral order doctrine of Cohen

v. Beneficial Ind. Loan Corp., 69 S.Ct. 1221, 1225-26 (1949).

In Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir.

1977), we held that an order denying a request for counsel of an in

forma pauperis plaintiff in a Title VII suit was appealable under
3

the collateral order doctrine. In White v. United States Pipe &

Foundry Co., 646 F.2d 203 (5th Cir. 1981), we entertained a similar

appeal in another Title VII case, although we did not address the

jurisdictional issue. In Robbins v. Maggio, 750 F.2d 405 (5th Cir.

1985), we held that state prisoners bringing in forma pauperis

civil rights actions against prison authorities under 42 U.S.C. §

1983 could immediately appeal interlocutory orders denying their

requested appointment of counsel. We there relied on Caston, and

held that it and White were not vitiated by the Supreme Court's

post-Caston decisions in Coopers & Lybrand, Firestone Tire & Rubber

Co. v. Risjord, 101 S.Ct. 669 (1981), and Flanagan v. United

States, 104 S.Ct. 1051 (1984), nor by our own decision in Gibbs v.

Paluk, 742 F.2d 181 (5th Cir. 1984), applying Flanagan to civil

cases.

More recently, in Marler v. Adonis Health Products, 997 F.2d

1141 (5th Cir. 1993), we declined to extend Robbins and Caston to

an indigent prisoner's attempted appeal of the denial of his

request for the appointment of counsel in his products liability

law suit. We there noted that "the First, Second, Third, Fourth,

Sixth, Seventh, Tenth, and Eleventh Circuits have held that

district court orders denying plaintiffs appointed counsel in civil

cases are not immediately appealable under the collateral order

doctrine," that the Ninth Circuit had held that such orders were

immediately appealable in Title VII cases but not in section 1983

cases, and that only the Fifth and Eighth Circuits have held that

such orders are immediately appealable in civil rights cases.

Marler at 1142 (footnotes omitted). Marler held that the
4

challenged order was not effectively unreviewable on appeal from a

final judgment, one of the requirements of the collateral order

doctrine. Id. at 1143.

The only reported appellate decision of which we are aware

addressing the present issue has held that the denial of an

indigent section 2254 petitioner's request for counsel is not

immediately appealable under the collateral order doctrine.

Weygandt v. Look, 718 F.2d 952 (9th Cir. 1983). That holding was

made in Weygandt despite recognition that in that Circuit such

orders were immediately appealable in Title VII cases.

We conclude that the rule of Robbins and Caston should not be

extended to section 2254 cases, and that instead the approach of

Marler should be followed, at least in instances where there is no

evidentiary hearing to be had in the district court. Several

special factors distinguish section 2254 proceedings from those

under section 1983 or Title VII. In section 2254 cases appointment

of counsel is mandatory in the event that an evidentiary hearing is

to be held. See Rule 8(c) of the rules following section 2254.

There is no corresponding mandatory provision in Title VII or

section 1983 cases. Thus, if there is to be an evidentiary

hearing, the habeas petitioner will be represented by counsel.

This ameliorates the concern expressed in Robbins that an

individual without counsel has little hope of prosecuting his case

to a final resolution on the merits. See Robbins at 409, 413.

This is relevant to the issue of whether the denial of counsel will

be effectively unreviewable on appeal from the final judgment. It

is also relevant to another requirement of the collateral order
1 Analogously, under Rule 6(a) of the rules following section

2254, the district court is not required to, but may, authorize

discovery, and if discovery is authorized, may appoint counsel

"[i]f necessary for effective utilization of discovery procedures."

Where the district court has not authorized discovery, but may do

so in the future, the court may then be more inclined to appoint

counsel at that time, pursuant to Rule 6(a). 

5

doctrine, namely that the challenged order conclusively determine

the disputed issue. See Marler at 1143. If the district judge

should determine that an evidentiary hearing is appropriate, we

have no reason to doubt that he will then follow the requirement of

Rule 8(c) and appoint counsel.1 Another aspect of section 2254

procedures which we find highly relevant is the requirement of 28

U.S.C. § 2253 that, where the complained of confinement is pursuant

to state court process, an appeal by the prisoner requires a

certificate of probable cause. This reflects a more restrictive

attitude respecting appeals by section 2254 petitioners than that

which obtains in instances of appeals by section 1983 or Title VII

plaintiffs. It also seems to inferentially contemplate only an

appeal from the final disposition of the habeas petition. Another

special aspect of habeas corpus litigation is the general

requirement that it be promptly disposed of. See 28 U.S.C. § 2243.

See also Payton v. Rowe, 88 S.Ct. 1549, 1552 (1968). Interlocutory

appeals can only serve to delay disposition of such cases. Cf.

Flanagan, 104 S.Ct. at 1055 ("Because of the compelling interest in

prompt trials, the Court has interpreted the requirements of the

collateral-order rule exception to the final judgment rule with the

utmost strictness in criminal cases"). 

Finally, we note that our experience has been that pro se
6

habeas petitioners are capable of perfecting, and very frequently

do perfect, appeals from the denial of habeas relief. Nothing in

our experience with these cases leads us to believe that allowance

of an interlocutory appeal in a case such as this is necessary or

needful to protect the rights of such petitioners or to preserve

for proper appellate review on appeal from final judgment

complaints of denial of counsel in the section 2254 proceeding.

We conclude that the order denying this section 2254

petitioner his request for the appointment of counsel is not

appealable under the collateral order doctrine, because it does not

conclusively determine the issue of whether counsel will ultimately

be appointed for the petitioner in the section 2254 proceeding, and

because petitioner's entitlement to counsel will not be effectively

unreviewable on appeal from the final judgment disposing of the

habeas petition.

Because there has been no final judgment under section 1291,

and because the requirements of the collateral order doctrine are

not met, we have no jurisdiction over the present appeal.

Therefore, the appeal is 

DISMISSED FOR WANT OF JURISDICTION.