DLD-212 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1713

___________

IN RE: JAMAL A. MORTON,

Petitioner

____________________________________

On a Petition for Writ of Mandamus from the

Supreme Court of the Virgin Islands

(Related to V.I. S. Ct. Civ. No. 2010-00116)

____________________________________

Submitted Pursuant to Rule 21, Fed. R. App. P.

June 28, 2012

Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

(Opinion filed July 10, 2012)

_________

OPINION

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PER CURIAM

Jamal A. Morton seeks a writ of mandamus directing the Virgin Islands Supreme 

Court to compensate his counsel for filing a petition for a writ of certiorari in this Court 

and for any future litigation in the United States Supreme Court. We will deny the 

mandamus petition.

I.

Morton is currently facing criminal charges in the Virgin Islands Superior Court. 
2

His court-appointed counsel, Joseph A. DiRuzzo, III, filed a motion with that court to 

compel the Virgin Islands to provide “constitutionally adequate attorneys fees” for his 

defense. Morton claimed that the fees allowed in the Virgin Islands were too low to 

insure constitutionally adequate representation. The Superior Court ordered the issue 

“severed” from Morton’s criminal proceeding and suggested that he pursue it by way of a 

separate civil action. Morton instead appealed to the Virgin Islands Supreme Court, 

which dismissed his appeal for lack of appellate jurisdiction. Morton then filed a petition 

for a writ of certiorari seeking review of that ruling, which we denied. See Virgin Islands 

v. Morton, C.A. No. 11-3927 (Dec. 22, 2011). In addition to the certiorari petition, 

Morton filed a motion for appointment of his counsel in this Court under the Criminal 

Justice Act (“CJA”), 18 U.S.C. § 3006A, to receive federal payment for filing the 

certiorari petition. We denied that request as well, noting that the CJA contains no 

provision authorizing the payment of federal funds for the filing of a certiorari petition 

from the Virgin Islands Supreme Court, at least when certiorari is denied (we had no 

occasion to address compensation for a certiorari petition that is granted

In the meantime, the Virgin Islands legislature had increased the fees allowed to 

court-appointed counsel.

, and we have no 

such occasion now).

1

 1 Morton initially challenged the Virgin Islands’ allowance of only $45.00 per 

hour for out-of-court time and $65.00 per hour for in-court time. Morton did not specify 

what hourly rate he thought was constitutionally required, but he noted that many states 

pay more, including three that allow $75.00 per hour for all types of work. Effective 

Despite that development, Morton returned to the Virgin 
3

Islands Supreme Court following our ruling and sought a writ of mandamus requiring the 

Superior Court to rule on his fee challenge as originally presented. He also requested 

appointment of counsel in that mandamus proceeding and compensation for filing the 

mandamus petition as well. The Virgin Islands Supreme Court denied both requests, and 

Morton once again filed a certiorari petition seeking review of those rulings. We are 

issuing an order in C.A. No. 12-1712 contemporaneously herewith denying that petition 

because we discern no “special and important reasons” for review. 3d Cir. LAR 112.1(a) 

(2010).

Shortly before filing that certiorari petition, Morton filed a motion with the Virgin 

Islands Supreme Court asking that court to compensate his counsel for preparing that 

certiorari petition too. Morton’s counsel argued that he had a duty to file the certiorari 

petition under Virgin Islands Supreme Court Rule 210.3(g), which requires “courtappointed” counsel to assist defendants in seeking certiorari, and he asked that court to 

compensate his counsel for preparing the petition given the absence of authority 

permitting compensation with federal funds. The court denied the request on March 6, 

2012. The court explained that, because it had not appointed Morton’s criminal counsel 

in the mandamus proceeding, his counsel “possesses absolutely no obligation to file a 

certiorari petition on Morton’s behalf pursuant to Rule 210.3(g).” (March 6, 2012 Order 

 

October 7, 2011, the Virgin Islands legislature increased the allowable hourly rate to not 

less than $75.00 for all types of work. See 2011 V.I. Sess. Laws B. No. 29-0208, Act 

7316, § 2(b); In re Morton, No. 2011-0116, 2012 WL 653786, at *4 n.2 (V.I. Feb. 27, 

2012). 
4

at 1.) Morton’s counsel filed the certiorari petition anyway, and he now seeks a writ of 

mandamus ordering the Virgin Islands Supreme Court to compensate him for doing so.

2

II.

“‘The writ of mandamus is a drastic remedy that a court should grant only in 

extraordinary circumstances in response to an act amounting to a judicial usurpation of 

power.’” Birdman v. Office of the Governor, 677 F.3d 167, 174 (3d Cir. 2012) (citations 

and internal quotation marks omitted). The writ may issue only if, inter alia, the 

petitioner has a “‘clear and indisputable’” right to relief. Id. (citation omitted). “‘Even 

when these prerequisites are met, however, the issuance of a writ is largely 

discretionary.’” Id.

The sole relief that Morton requests is an order directing the Virgin Islands 

Supreme Court to compensate his counsel for filing his most recent certiorari petition

(and to fund any future litigation in the United States Supreme Court, a matter on which 

we decline to issue an advisory opinion). Morton argues that the Virgin Islands Supreme 

Court’s duty to provide such compensation arises from various provisions of the Virgin 

(citations and internal quotation marks omitted). 

 2 Morton seeks review of this issue solely by mandamus and has not invoked our 

certiorari jurisdiction under 48 U.S.C. § 1613 in this respect. We need not decide 

whether the issue Morton presents is more properly addressed by certiorari because, to 

the extent that certiorari might be a more appropriate vehicle for review, it is denied for 

the reasons explained herein. We have mandamus jurisdiction under the All Writs Act, 

28 U.S.C. § 1651, in aid of our certiorari jurisdiction over the Virgin Islands Supreme 

Court. Cf. In re Richards, 213 F.3d 773, 781-82 (3d Cir. 2000) (relying, inter alia, on the 

United States Supreme Court’s mandamus jurisdiction over state courts in holding that 

the Appellate Division of the District Court for the District of the Virgin Islands had 

mandamus jurisdiction over the former Virgin Islands Territorial Court).
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Islands Code and rules of court. The Virgin Islands Code requires appointment of 

counsel in certain criminal cases, including Morton’s underlying criminal prosecution. 

See 5 V.I.C. § 3503(a). The Rules of the Virgin Islands Supreme Court require courtappointed counsel to “continue to represent th[e] litigant on appeal,” V.I. S. Ct. R. 

210.3(a), and thereafter, if the defendant wishes to seek certiorari, to “assist the defendant 

in preserving his right to file a petition for a writ of certiorari,” V.I. S. Ct. R. 210.3(g).3

 

The Virgin Islands Code and Virgin Islands Supreme Court rules also address the 

compensation of court-appointed counsel in general. See 5 V.I.C. 3503(b); V.I. S. Ct. R. 

210.4(a). Thus, Morton argues, the Virgin Islands Supreme Court must compensate his 

counsel for filing the certiorari petition that its own Rule 210.3(g) required him to file.4

The problem with that argument, and the reason Morton has no “clear and 

indisputable” right to that relief, is that no provision of the Virgin Islands Code or the 

Virgin Islands Supreme Court Rules expressly requires that court to pay such

compensation. To the contrary, as Morton acknowledges, the rule that addresses this 

 3 Morton asserts that this latter provision requires court-appointed counsel to 

prepare and file an actual certiorari petition. The rule itself speaks only of “assist[ing] the 

defendant in preserving his right” in that regard. We will assume without deciding that 

the rule requires the actual filing of a certiorari petition as Morton contends.

4 Morton does not argue that appointment of counsel on certiorari from the Virgin 

Islands Supreme Court is constitutionally required, and he relies instead solely on what 

he characterizes as the right to counsel created by Rule 210.3(g). In that regard, we note 

that the Constitution generally does not require states to appoint counsel for purposes of 

seeking discretionary appellate review in state court or the United States Supreme Court. 

See Ross v. Moffitt, 417 U.S. 600, 610-612 (1974).
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situation provides instead that “[a]ny court-appointed attorney who files and prosecutes a 

petition for writ of certiorari in the United States Court of Appeals for the Third Circuit 

or the Supreme Court of the United States . . . shall be compensated by and pursuant to 

the rules governing proceedings in those courts

These arguments do raise concerns. We also question whether either the Revised 

Organic Act, 48 U.S.C. §§ 1541-1645, or the Virgin Islands Code authorizes the Virgin 

Islands Supreme Court to promulgate rules regarding representation in and compensation 

by 

.” V.I. S. Ct. R. 210.4(i) (emphasis 

added). Morton cites no other statute or rule addressing compensation in this situation.

Morton also does not ask us to declare Rule 210.4(i) invalid. In arguing that the 

Virgin Islands Supreme Court is required to compensate him notwithstanding that rule, 

however, he argues that the court exceeded its authority in promulgating it. Morton 

contends that the rule conflicts with the Virgin Islands Code, which provides that 

allowable compensation for court-appointed counsel “shall be paid out of money 

appropriated for that purpose by law,” presumably by the Virgin Islands legislature. 5 

V.I.C. § 3503(b). He also notes that the rule appears to conflict with our ruling that the 

CJA does not authorize the payment of federal funds for filing a certiorari petition from 

the Virgin Islands Supreme Court. Thus, he argues, if this Court cannot compensate him,

then the Virgin Islands Supreme Court must.

federal courts. See, e.g., 48 U.S.C. § 1611(c) (authorizing the Virgin Island legislature 

and local courts to promulgate “rules governing the practice and procedure of the courts 

established by local law”) (emphasis added); 4 V.I.C. § 34 (authorizing the Virgin Islands 
7

Supreme Court to “regulate the practice and procedure governing causes and proceedings 

in the Court”) (emphasis added). Thus, there may be some question whether the Virgin 

Islands Supreme Court is authorized to require court-appointed counsel to file a certiorari 

petition in this Court and then look to this Court for compensation, particularly in light of 

this Court’s lack of ability to authorize such compensation under the CJA (at least when 

certiorari is denied).

We do not decide the issue in this case, however, because this case does not 

present it. Morton argues that the Virgin Islands Supreme Court’s purported duty to 

compensate him for filing the certiorari petition was triggered by his purported obligation 

under Rule 210.3(g) to file it. As that court explained, however, Morton’s counsel had no 

such duty in the first place. The duty to assist criminal defendants in seeking certiorari is 

imposed only on “court-appointed counsel,” V.I. S. Ct. 210.3(g), and the provision 

directing counsel to seek compensation in federal court applies only to a “court-appointed 

attorney,” V.I. S. Ct. R. 210.4(i). The certiorari petition for which Morton’s counsel 

seeks compensation arose from an original mandamus proceeding in the Virgin Islands 

Supreme Court, see

Moreover, the duty to assist criminal defendants in seeking certiorari necessarily is 

imposed only on those court-appointed counsel who are first required to continue 

4 V.I.C. § 32(b), and that court declined to appoint his counsel in that 

proceeding, a ruling that we are declining to review. Thus, the Virgin Islands Supreme 

Court did not consider Morton’s criminal counsel to be “court-appointed” in that 

proceeding, and it so advised him before he filed the certiorari petition.
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representation, or who are appointed in the first instance, “on appeal[.]” V.I. S. Ct. R. 

210.3(a) & (b). A mandamus proceeding is not an “appeal.” See Madden v. Myers

For that reason, we need not address whether Virgin Islands law requires the 

Virgin Islands to pay compensation for a certiorari petition that Rule 210.3(g) may 

require court-appointed counsel to file. We also need not and do not address the validity 

of that or any other Virgin Islands rule of court. We note in that regard that Morton has 

not requested that we declare any of those rules invalid and that his counsel has not 

otherwise sought relief from their purported requirements (by, for example, seeking leave 

to withdraw). Instead, his counsel seeks only to be paid. Because he has no clear and 

indisputable right to that relief, the mandamus petition is denied.

, 102 

F.3d 74, 77 (3d Cir. 1996). Thus, Morton’s counsel had no duty to file the certiorari 

petition for which he seeks to be paid. In the absence of such a duty, the filing of the 

petition does not trigger the Virgin Islands Supreme Court’s purported duty to make that 

payment.

5

 5 We nevertheless encourage the Virgin Islands Supreme Court to consider 

whether amendment of its rules might be warranted in light of the concerns discussed 

herein, and particularly in light of our conclusion that the CJA does not authorize the 

payment of federal funds for filing a petition for certiorari from the Virgin Islands 

Supreme Court when certiorari is denied. As explained above, we express no opinion on 

these issues. For present purposes, it is sufficient merely to note them for the Virgin 

Islands Supreme Court’s consideration. Cf. Austin v. United States, 513 U.S. 5, 8-9 

(1994) (suggesting that Circuit councils revise their Criminal Justice Plans by creating 

mechanism for the Courts of Appeals to relieve counsel of the obligation to file certiorari 

petitions that counsel believe would present only frivolous claims).