United States v. Starnes , 341 F. App'x 958 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2009
No. 07-60210
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MICHAEL STARNES, also known as “Little Mike”
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:02-CR-95-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
In 2003, Michael Starnes was convicted by a jury of various drug related
offenses. He was sentenced to a total of 145 years of imprisonment. On appeal,
the Government conceded that two of the charges against Starnes should be
dismissed. This court affirmed Starnes’s remaining convictions and remanded
the case for resentencing. Thereafter, Starnes filed a motion seeking the
disqualification of his court-appointed attorney, alleging that he was denied the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 07-60210
effective assistance of counsel. Starnes filed the instant appeal after the district
court issued an order denying his motion. Starnes was subsequently
resentenced to a total of 50 years of imprisonment. His appeal from that
decision is pending in this court as a separate proceeding.
“Finality as a condition of review is an historic characteristic of federal
appellate procedure.” Cobbledick v. United States, 309 U.S. 323, 324 (1940). As
an initial matter, we must determine whether the district court’s order denying
Starnes’s motion to disqualify counsel is immediately appealable as a final
judgment. See In re County Management, 788 F.2d 311, 313 (5th Cir. 1986)
(court obligated to review own jurisdiction where in question); 28 U.S.C § 1291
(final-judgment rule); Flanagan v. United States, 465 U.S. 259, 263 (1984) (the
rule encourages appellants “to raise all claims of error in a single appeal”
(internal quotation marks omitted)).
“Federal Circuit Courts only have jurisdiction over three types of appeals:
(1) final orders, 28 U.S.C. § 1291; (2) certain specific types of interlocutory
appeals, such as those where injunctive relief is involved, 28 U.S.C. § 1292(a)(1);
and (3) appeal[s] where the district court has certified the question as final
pursuant to Federal Rule 54(b), 28 U.S.C. § 1292(b).” Dardar v. Lafourche
Realty Co., 849 F.2d 955, 957 (5th Cir. 1988). The district court’s ruling on
Starnes’s motion to disqualify does not fall into any of the permitted categories.
Although the contrary rule once prevailed in this circuit, see United States v.
Garcia, 517 F.2d 272, 275 (5th Cir. 1975), that precedent has been overruled.
In Flanagan, the Supreme Court specifically excluded counsel-disqualification
rulings from the limited categories of immediately appealable pretrial orders
because such orders “lack[] the critical characteristics that make orders denying
bail reduction or refusing to dismiss on double jeopardy or Speech or Debate
grounds immediately appealable.” 465 U.S. at 266. “Nothing about a
disqualification order distinguishes it from the run of pretrial judicial decisions
that affect the rights of criminal defendants yet must await completion of trial-
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No. 07-60210
court proceedings for review.” Id. at 270. Although Flanagan involved an order
for disqualification that had been granted whereas this case involves one that
has been denied, we perceive no rational reason to interpret Flanagan as being
limited to the former circumstance. Accordingly, we find that we lack subject
matter jurisdiction to entertain this appeal.
The appeal is DISMISSED for lack of jurisdiction.
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