Unpublished Disposition, 865 F.2d 265 (9th Cir. 1986)

MEMORANDUM^** 

SUMMARY

James Milton Cotten appeals the district court's denial of his habeas corpus motion. Cotten claims that he was denied the right to appeal his 18 U.S.C. § 2312 convictions because he lacked court-appointed legal assistance with which to pursue his appeal. The government argues that because Cotten failed to file a second financial affidavit as ordered both by the district court and this court, he was not eligible for court-appointed legal services, and his appeal was properly dismissed as a consequence.

FACTS

On March 3, 1982, Cotten was arrested for his involvement in the interstate transportation of two stolen automobiles. That same day, Cotten filed a financial affidavit documenting his inability to finance his own defense. The district court appointed as his counsel Stephen Hillman.

After a bench trial, Cotten was convicted. At sentencing, Hillman sought to be relieved as counsel because Cotten intended to raise on appeal the issue of Hillman's competence.¹  The district court indicated it would relieve Hillman after Hillman filed a notice of appeal. Hillman filed the notice of appeal, and the district court then relieved him as Cotten's counsel. Hillman then instructed Cotten to complete another financial affidavit and request the court of appeals to appoint new defense counsel.

Cotten petitioned for appointment of counsel, but did not submit a new financial affidavit. Consequently, the court of appeals issued an order stating that we would "act upon appellant's motion for appointment of counsel when appellant submits a complete financial affidavit, fully detailing all of appellant's current assets and liabilities."

Cotten did not submit an affidavit. As a result, this court denied Cotten's motion and remanded the case to the district court for a determination as to Cotten's eligibility for benefits under the Criminal Justice Act of 1964. On remand, Cotten was again instructed that a new affidavit was required. When no affidavit was filed, the district court denied Cotten's request to proceed in forma pauperis. Cotten appealed, and this court ordered Cotten to pay the necessary filing fees or submit a new affidavit. Cotten failed to do either, and his appeal was dismissed. On August 7, 1986, Cotten filed this habeas corpus motion. The district court denied Cotten's motion, and Cotten filed a timely appeal.

DISCUSSION

Filing a notice of appeal transfers jurisdiction from the district court to the court of appeals with respect to all matters involved in the appeal. Doyle v. United States, 721 F.2d 1195, 1197 (9th Cir. 1983). Consequently, the district court did not have jurisdiction to relieve Hillman.

In any event, the action of the district court was at most harmless error because it did not substantially prejudice Cotten. Judgments are not reversed for errors which do not affect the substantial rights of the parties. Chapman v. California, 386 U.S. 18, 22 (1967); 28 U.S.C. § 2111; Fed. R. Crim. P. 52(a). This court would have relieved Hillman of his duties if the motion to withdraw had been filed in the proper court.

Cotten intended to assert on appeal the ineffective assistance of counsel. Thus, Hillman could not represent Cotten on appeal. Cotten necessarily had to petition the court of appeals in order to obtain another appointed counsel. When a change of counsel is sought on appeal, the court of appeals can make its own determination as to whether the defendant is indigent. U.S. Ct. of App. 9th Cir. Rules, app. A Sec. 5.

The burden of proof of financial status is on the defendant who seeks appointed counsel. See, e.g., United States v. Titus, 576 F.2d 210, 211 (9th Cir.), cert. denied, 439 U.S. 860 (1978); United States v. Ellsworth, 547 F.2d 1096, 1098 (9th Cir. 1976), cert. denied, 431 U.S. 931 (1977). Cotten failed to meet this burden when he requested that the court of appeals appoint another counsel. Without having submitted the requested financial information, Cotten had failed to demonstrate his eligibility for court-appointed legal assistance.

CONCLUSION

The district court's relieving Cotten's appointed counsel was at most harmless error because the court of appeals would have removed Hillman. This court properly required Cotten to file a new financial affidavit. Cotten did not file the requested affidavit. As a result, he was required to pay the necessary filing fees, and when he did not, his appeal was properly dismissed.

AFFIRMED.