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Copeland v. Ryan

United States Court of Appeals, Ninth Circuit

March 28, 2017

Alfred Copeland, AKA Charles Alfred Copeland Petitioner-Appellee,
v.
Charles L. Ryan; Attorney General of the State of Arizona, Respondents-Appellants.

          Argued and Submitted February 15, 2017 San Francisco, California

         Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, Senior District Judge, Presiding D.C. No. 2:13-cv-02278-PGR

          Kristina Reeves (argued), Assistant Attorney General; Lacey Stover Gard, Chief Counsel; John R. Lopez, IV, Solicitor General; Mark Brnovich, Attorney General; Capital Litigation Section, Office of the Attorney General, Phoenix, Arizona; for Respondents-Appellants.

          Emma Isakson (argued) and Lee Stein, Mitchell Stein Carey PC, Phoenix, Arizona, for Petitioner-Appellee.

          Before: Marsha S. Berzon and Richard R. Clifton, Circuit Judges, and Marvin J. Garbis, [*] District Judge.

         SUMMARY [**]

         Habeas Corpus

         The panel reversed the district court's orders requiring an Arizona state corrections official to reimburse a petitioner for deposition expenses incurred in his pending habeas proceeding under 28 U.S.C. § 2254.

         The panel had interlocutory jurisdiction under the collateral order doctrine, and held that a district court cannot order a state to reimburse an indigent habeas petitioner for deposition expenses in a § 2254 habeas proceeding when, as here, the state did not request the deposition.

         The panel remanded for further proceedings to determine whether the petitioner may obtain reimbursement from the federal government under the Criminal Justice Act.

         Concurring in full, Judge Berzon noted that the Supreme Court has significantly limited the applicability of the collateral order doctrine in recent years, but that this court's precedents are not clearly irreconcilable with Supreme Court law.

          OPINION

          CLIFTON, Circuit Judge:

         Respondent Charles L. Ryan, as Director of the Arizona Department of Corrections, appeals the district court's interlocutory orders requiring him to reimburse Petitioner Alfred Copeland for deposition expenses incurred in Copeland's pending habeas proceeding under 28 U.S.C. § 2254. We have interlocutory jurisdiction under the collateral order doctrine. We conclude that a district court cannot order a state to reimburse an indigent habeas petitioner for deposition expenses in a § 2254 habeas proceeding when, as here, the state did not request the deposition. We reverse the relevant orders and remand for further proceedings to determine whether Copeland may obtain reimbursement from the federal government under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

         I. Background

         Following a jury trial in an Arizona state court, Copeland was convicted in February 2002 on ten different state criminal charges. The state court sentenced Copeland to a total of 118 years' imprisonment.

         Eleven years later, in November 2013, Copeland filed in federal court a pro se petition for habeas corpus under 28 U.S.C. § 2254 challenging his state convictions. To overcome § 2254's one-year statute of limitations, Copeland alleged "actual innocence" on several counts of the underlying indictment.[1] The district court held that Copeland had failed to establish actual innocence on all but two of the counts of the indictment, and ordered an evidentiary hearing on the remaining two counts. In light of the evidentiary hearing and Copeland's indigent status, the district court ordered the appointment of counsel for Copeland under the CJA, 18 U.S.C. § 3006A(a)(1)(2)(B), and Rule 8(c) of the Rules Governing Section 2254 Cases.

         Prior to the evidentiary hearing, the parties contacted two of Copeland's alleged victims, who had been identified as potential fact witnesses. Both victims indicated that they no longer lived in Arizona and were unwilling to travel to Arizona to participate in the hearing. At the suggestion of Copeland's appointed counsel, the district court excused the victims from appearing in person at the evidentiary hearing, and instead subpoenaed them to testify via video depositions to be taken near their respective homes outside Arizona. The district court ordered both parties' counsel to attend the depositions.

         After the depositions were scheduled, Copeland's appointed counsel filed two ex parte motions requesting that the State reimburse Copeland for certain expenses incurred in connection with the out-of-state depositions.[2] The district court granted both applications under Federal Rule of Criminal Procedure 15(d), and ordered the State to reimburse Copeland for (1) "the expenses incurred in the taking of video depositions of [both witnesses]"; (2) "the reasonable travel and subsistence expenses incident to the attendance of [Copeland's] counsel at the depositions, " including airfare, lodging, rental cars, and meals; and (3) "the costs of attendance of [both witnesses] at the depositions."

         After the district court summarily denied the State's motion for reconsideration of the reimbursement orders, the State timely filed this interlocutory appeal.

          II. Jurisdiction

         Under the final judgment rule, appellate jurisdiction is customarily limited to "final decisions" of the district courts. 28 U.S.C. § 1291. Copeland's habeas petition is still pending before the district court, so there is no final judgment in his case yet. The State contends that we nevertheless have jurisdiction in this instance under the ...


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