United States of America, Appellee, v. Ramzi Ahmed Yousef, Petitioner-appellant, 395 F.3d 76 (2d Cir. 2005)

In an order dated August 25, 2004, we dismissed for want of jurisdiction appellant Ramzi Ahmed Yousef's claim that the United States District Court for the Southern District of New York (Kevin T. Duffy, Judge) erred in denying his request for, among other things, appointment of counsel under the Criminal Justice Act ("CJA"), 18 U.S.C. § 3006A. United States v. Yousef, No. 04-0381, slip op. at 2 (2d Cir. Aug. 25, 2004) (unpublished decision). As the District Court recognized in denying Yousef's request for CJA counsel, "there is no constitutional right to representation by counsel in habeas corpus proceedings," and § 3006(a) (2) only requires appointment of counsel for a financially eligible person if "the interests of justice so require." D. Ct. Order at 1, No. S12-93-CR-180 (S.D.N.Y. Dec. 15, 2003). Appellant's counsel, Bernard V. Kleinman,¹  subsequently filed a "CJA voucher" with this Court, seeking $12,533.77 for fees and expenses incurred in connection with that appeal.

The Criminal Justice Act provides for compensation of attorneys who have been "appointed pursuant to [§ 3006A]." See § 3006A(d) (1). The Act refers to attorney compensation in the context of "proceedings before appellate courts" where counsel has been "appointed under [§ 3006A]," see § 3006A(d) (7), and the CJA vouchers of this Court state in relevant part that payment is authorized for "court-appointed counsel." See U.S. Court of Appeals for the Second Circuit, CJA Form 20, Appointment of and Authority to Pay Court Appointed Counsel, available at http://www.ca2.uscourts.gov (last visited Jan. 11, 2005). Because the District Court denied Kleinman's request to be appointed CJA counsel in the habeas case, and because we did not have appellate jurisdiction over the case, as the District Court's order was neither a final judgment appealable under 28 U.S.C. § 1291 nor an interlocutory order appealable under the collateral order doctrine, we were unable to consider Kleinman's claim for compensation as represented in his CJA voucher.

In a letter dated December 28, 2004, Kleinman asked that we reconsider our rejection of his voucher. We treat this letter as a motion for rehearing and, for present purposes, pretermit the question of timeliness and reach the merits. As before, we conclude that we are without jurisdiction to consider his application. Kleinman is invited to address his concerns to the District Court, which retains jurisdiction over this matter and, under § 3006A(b), has the authority to make retroactive CJA appointments. See § 3006A(b) (" [A]ppointment may be made retroactive to include any representation furnished pursuant to the plan prior to appointment."). We are mindful of Kleinman's admirably vigorous and tenacious legal representation of his client in difficult circumstances in this Court and elsewhere, and in denying his motion for rehearing we do not suggest otherwise. Nor do we intimate a view on the merits of any application Kleinman may make to the District Court under § 3006A, mindful that the District Court will fully consider the appropriateness of such an application.

The motion for rehearing must be, and hereby is, DENIED, and the motion is remanded to the District Court for such consideration as it may deem appropriate in the circumstances.

The mandate shall issue forthwith.