Opinion
CASE NO. 15-14046-CR-MARTINEZ/LYNCH
03-23-2017
UNITED STATES OF AMERICA, Plaintiff, v. JETTA LYN FRAKE, Defendant.
cc: Hon. Jose E. Martinez Jetta Lyn Frake, pro se Inmate No. 63117-018 Inmate Mail/Parcels Coleman Federal Correctional Complex Camp PO Box 1027 Coleman, FL 33521-1027 Julie Prag Vianale, Esq. Marton Gyires, AUSA
REPORT AND RECOMMENDATION ON DEFENDANT'S PETITION FOR APPOINTMENT OF COUNSEL (DE 516) AND REQUEST TO TERMINATE APPOINTED COUNSEL AND TO PROCEED PRO SE ON APPEAL (DE 527) AND ON CJA COUNSEL'S MOTION FOR LEAVE TO WITHDRAW (DE 528)
THIS CAUSE comes before this Court upon an Order of Reference (DE 530) and the above Motions. Having reviewed the Motions, CJA Counsel's Supplement (DE 531), and the other relevant portions of this case and the companion § 2255 case, this Court recommends as follows:
1. The instant case is the underlying criminal case. Pursuant to a plea deal, the Defendant was found guilty of the offense of conspiracy to distribute and possess with intent to distribute methamphetamine. Judgment was rendered against her and sentence was imposed, as reflected by DE 410 in this criminal case.
2. Proceeding on a pro se basis the Defendant attacked her sentence collaterally in a § 2255 Motion. Her § 2255 Motion was heard in the separate civil case of Frake v. U.S., 16-14322-CIV-MARTINEZ/WHITE. By way of a Report and Recommendation, U.S. Magistrate Judge White ruled on the merits of her § 2255 Motion and recommended that it be denied. District Judge Martinez adopted that Report and Recommendation. The Defendant now seeks to appeal that denial of her § 2255 Motion and that appeal is currently active. That civil appeal case is Frake v. U.S., Appeal Case No. 16-16785 (11th Circuit).
3. As clarified in the Supplement, the Defendant is not appealing her criminal judgment and sentence directly. The pending Motions that this Court addresses here in this Report and Recommendation instead concern--- either directly or indirectly---her civil case, that is, her § 2255 Motion and her appeal of its denial. Nonetheless, because the pending Motions were filed here in this criminal case, this Court will go ahead and address them within the criminal case.
4. The above describes the procedural posture and background of the pending Motions. This Court addresses next the Motions' merits.
5. This Court begins with the requests of both the Defendant, herself, and her former CJA defense counsel, Ms. Vianale, to allow Ms. Vianale to withdraw her representation. The Defendant prefers to pursue her § 2255 Motion on appeal herself, on a pro se basis (or alternatively as she requests at DE 516, have counsel other than Ms. Vianale represent her).
6. Ms. Vianale represented the Defendant during the underlying criminal case. That case has long since been over and no direct appeal was taken. Ms. Vianale attaches to her Motion for Leave to Withdraw (DE 528) a letter from the Eleventh Circuit that appoints her to represent the Defendant, and that appointment letter references this criminal case. That appointment letter is dated February 6, 2017. In her Supplement (DE 531) Ms. Vianale speculates that the Defendant's Notice of Appeal, filed at DE 515 in this criminal case, may have triggered her appointment. It may have triggered the creation of the criminal appeal case, US v. Frake, Criminal Appeal Case No. 17-10544-G (11th Circuit), as well.
7. That may explain how Ms. Vianale came to be appointed to represent the Defendant on appeal generally. Even if the pleadings show no appeal of the criminal case but rather an appeal of just the civil case, this Court cannot change the Eleventh Circuit's appointment letter. Should the Defendant and Ms. Vianale seek relief from that appointment letter, they will have to ask the Eleventh Circuit. For this reason this Court finds that the two pending motions (DE 527 & 528) be denied but without prejudice to re-filing them with the Eleventh Circuit.
8. This Court turns next to the Defendant's Petition for Appointment of Counsel (DE 516). It appears that the Defendant directs that particular Motion to the Eleventh Circuit. Because the issues that the Defendant raises there in that Petition are issues already being briefed before the Eleventh Circuit, this Court errs on the side of caution and declines to dispose of it here to avoid prejudicing the parties or interfering with the appeal. Instead this Court recommends that it be denied for administrative purposes to terminate it as a pending motion in this case and that it be denied without prejudice to the Defendant being able to file it in her civil appeal.
9. Had the Defendant directed her Petition for Appointment of Counsel (DE 516) to the District Court, this Court would have recommended its denial. This Court would have denied it on the basis of the general rule that a civil litigant or civil appellant is not entitled to court-appointed counsel. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999) (explaining that there is no constitutional right to the appointment of counsel in a civil case unlike a criminal case). Nor would this Court have found her § 2255 Motion otherwise to meet the limited exceptions to that general rule. See Dean v. Barber, 951 F.2d 1210, 1216 (11th Cir. 1992), Fowler v. Jones, 899 F.2d 1088 (11th Cir. 1990), and Jacobson v. McIlwain, 145 F.R.D. 595 (S.D. Fla. 1992).
ACCORDINGLY, this Court recommends to the District Court that the referred Motions (DE 516, 527 & 528) all be DENIED but without prejudice to the parties being able to raise them before the Eleventh Circuit in the appropriate appeal case.
The parties shall have fourteen (14) days from the date of this Report and Recommendation within which to file objections, if any, with the Honorable Jose E. Martinez, the United States District Judge assigned to this case. Failure to file timely objections shall bar the parties from a de novo determination by the District Court of the issues covered in this Report and Recommendation and bar the parties from attacking on appeal the factual findings contained herein. LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir. 1988), cert. denied, 488 U.S. 958 (1988).
DONE AND SUBMITTED in Chambers at Fort Pierce, Florida, this 23rd day of March, 2017.
/s/_________
FRANK J. LYNCH, JR.
CHIEF UNITED STATES MAGISTRATE JUDGE cc: Hon. Jose E. Martinez
Jetta Lyn Frake, pro se
Inmate No. 63117-018
Inmate Mail/Parcels
Coleman Federal Correctional Complex Camp
PO Box 1027
Coleman, FL 33521-1027
Julie Prag Vianale, Esq.
Marton Gyires, AUSA