Johnson, Curtis v. Chandler, Nedra ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 06-2259
CURTIS JOHNSON,
Petitioner-Appellant,
v.
NEDRA CHANDLER,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3432—William J. Hibbler, Judge.
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ARGUED JANUARY 24, 2007—DECIDED MARCH 20, 2007
PUBLISHED MAY 24, 2007
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Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.
PER CURIAM. We decided this section 2254 habeas corpus
appeal on March 20, 2007, affirming the district court’s
denial of Curtis Johnson’s habeas corpus petition. Attorney
Scott Frankel represented Mr. Johnson throughout the
proceedings in the district court by appointment under
the Criminal Justice Act, and he continued his representa-
tion of Mr. Johnson in this court. After we issued our
decision, Attorney Frankel sought payment for his services
on appeal. The court did not process the request for
payment because the court had not appointed Attorney
Frankel to handle Mr. Johnson’s appeal. Attorney Frankel
2 No. 06-2259
now seeks appointment nunc pro tunc so that he can be
compensated for his work on appeal.
It is not uncommon for attorneys who are appointed in
the district court to represent prisoners in habeas corpus
cases, as Attorney Frankel was, to forget to seek reappoint-
ment in this court. Circuit Rule 51(a) provides that trial
lawyers in criminal cases must continue as counsel on
direct appeal, unless relieved by this court. The rule
informs trial counsel in criminal cases that district court
appointments carry over from that court to the court of
appeals, and this court routinely appoints trial counsel to
handle the criminal appeal. It is not necessary for trial
counsel to file a motion. Unlike the district court’s appoint-
ment of counsel in criminal cases, the appointment of
counsel in habeas corpus cases does not carry over to an
appeal.
A petition for habeas corpus relief is not a part of the
criminal proceeding, and it is generally considered to be
a civil case. See Pennsylvania v. Finley, 481 U.S. 551, 556-
57 (1987). Nothing in Circuit Rule 51(a) requires counsel
recruited in a habeas corpus case by a district judge to
continue as counsel in this court. The appointment stops
at the door of the district court. See DiAngelo v. Illinois
Dep’t of Pub. Aid, 891 F.2d 1260, 1262 (7th Cir. 1989) (ap-
pointments in civil cases do not carry over to this court).
Lawyers representing prisoners in post-conviction mat-
ters by appointment in the district court are reminded to
seek reappointment in this court at the time an appeal is
filed if they continue their representation on appeal and
intend to seek compensation under the Criminal Justice
Act. While the court is not required to appoint counsel
in a habeas corpus appeal, representation may be pro-
vided for any financially eligible person if the interests of
No. 06-2259 3
justice so require. 18 U.S.C. § 3006A(a)(2)(B) (appointment
is discretionary); see also Wilson v. Duckworth, 716 F.2d 415,
418 (7th Cir. 1983) (per curiam) (habeas petitioner not
entitled to appointment of counsel on his appeal from
denial of writ of habeas corpus). In the present case, the
court benefitted from Attorney Frankel’s representation,
and we therefore grant his motion for appointment retro-
active to the date Attorney Frankel began his work on
Mr. Johnson’s appeal.
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-24-07