655 F.3d 1199
10th Cir.2011Background
- Rojem was convicted of first-degree murder, kidnapping, and rape in 1985 and sentenced to death.
- He filed a federal habeas petition under 28 U.S.C. §2254 after losing state relief and later seeking resentencing relief.
- The district court appointed counsel under 18 U.S.C. §3599(a)(2) to assist in the §2254 proceeding.
- The magistrate judge limited the Preliminary Litigation Budget to penalty-stage claims, denying guilt-phase investigation funding.
- Rojem sought de novo review of the magistrate’s budget ruling and separate funding for expert assistance, which the district court denied in one order.
- The appeal argues that the district court’s funding decisions were improper and appealable under Harbison, or, alternatively, that the court should grant de novo review of the budget.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal is reviewable given controlling precedents | Rojem relies on Harbison and contends the denial of counsel/funding is appealable | French controls; CJA fee determinations are not appealable | Not appealable; jurisdiction lacking under French/Harbison framework |
| Whether the district court abused its discretion in denying guilt-phase funding | Funding is reasonably necessary for guilt-phase investigation | Guilt issues not before the court; limited scope of representation | No abuse; budget denied only to the extent not reasonably necessary for the pending §2254 proceeding |
| Whether the district court erred in treating the matter as limited to the 2007 third resentencing | Requests were broader, including potential second/successive applications and clemency | Proceeding limited to issues arising from the third sentencing; other remedies not before court | Correct; only issues from the third sentencing were properly before the court |
Key Cases Cited
- United States v. French, 556 F.3d 1091 (10th Cir. 2009) (criminal justice act fee determinations not appealable orders)
- Harbison v. Bell, 556 U.S. 180 (Supreme Court 2009) (appealability of district court denial of counsel for clemency proceedings)
- Rojem v. Gibson, 245 F.3d 1130 (10th Cir. 2001) (relevant but not a cited holding for the jurisdiction issue in this opinion)