Hood v. Quarterman

Full title: Charles Dean HOOD, Petitioner-Appellant v. Nathaniel QUARTERMAN, Director…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 4, 2008

285 F. App'x 200 (5th Cir. 2008)

Opinion

No. 08-70033.

August 4, 2008.

Thomas Scott Smith, Smith Smith, Sherman, TX, for Petitioner-Appellant.

Tomee Morgan Heining, Office of the Attorney General, Postconviction Litigation Div., Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of Texas, USDC No. 4:99-CV-109.

Before SMITH, WIENER, and STEWART, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Petitioner-Appellant Charles Dean Hood appeals an order of the district court, entered July 11, 2008, denying his motions for appointment of counsel and stay of execution. Hood raises only the following issue before this court: "Does the federal appointment statute, 18 U.S.C. § 3599, provide prisoners sentenced under state law the right to federally appointed and funded counsel to pursue clemency under state law?"

We foreclosed this issue in Clark v. Johnson, holding that the statute does not apply to state clemency proceedings.¹ We acknowledge that the Supreme Court recently granted certiorari in Harbison v. Bell ² to consider the issue and presumably to address the split among the circuits.³ A prior panel of this court addressed precisely this issue after the Supreme Court granted certiorari in Harbison, and again held 18 U.S.C. § 3599 inapplicable to such proceedings.⁴ Although that decision is unpublished and thus not binding on us, we find it instructive.

1 278 F.3d 459, 462-63 (5th Cir. 2002).

2 ___ U.S. ___, 128 S.Ct. 2959, ___ L.Ed.2d ___ (2008).

3 See, e.g., Haiti v. Mullin, 436 F.3d 1168, 1172 (10th Cir. 2006) ("Acknowledging a circuit split on the issue, we nonetheless see no other logical way to read the statute.").

4 See Turner v. Quarterman, No, 08-70025, 284 Fed.Appx. 182, 2008 WL 2645674 (5th Cir. July 7, 2008) (per curiam), petition for reh'g en banc denied (5th Cir. July 10, 2008) (per curiam), cert. denied and application for stay of execution denied, ___ U.S. ___ ___, S.Ct. ___, ___ L.Ed.2d ___, 2008 WL 2690759 (U.S. July 10, 2008).

Accordingly, we AFFIRM the order of the district court and DENY Hood's separate motion for stay of execution.