In Re Carlos Ricardo Hill, Petitioner, 873 F.2d 1438 (4th Cir. 1989)

This Court recently remanded petitioner Carlos Ricardo Hill's 28 U.S.C. § 2255 action to the district court for further proceedings. United States v. Hill, 859 F.2d 325 (4th Cir. 1988). Hill now petitions this Court for a writ of mandamus directing the district court to appoint counsel to represent him in prosecuting this motion. We deny the petition.

In our opinion remanding Hill's action, we suggested, but did not require, the appointment of counsel on remand. Id. at 327. Thus, it cannot be said that mandamus relief is justified on the ground that the district court is disregarding the mandate of this Court. In addition, the district judge has not conclusively decided that Hill is not entitled to counsel, as he denied Hill's motions without prejudice to Hill's right to renew them at a later point in the proceedings. Finally, granting Hill the relief he seeks would allow him to circumvent this Court's recent ruling that motions denying appointment of counsel are not appealable prior to final judgment. Miller v. Simmons, 814 F.2d 962, 967 (4th Cir.), cert. denied, 56 U.S.L.W. 3267 (U.S. Oct. 13, 1987) (Nos. 86-6884, 86-7132).

Accordingly, we deny the petition for a writ of mandamus. Leave to proceed in forma pauperis is granted.

PETITION DENIED.