Tracy v. Lumpkin, 43 F.4th 473

Billy Joel Tracy was convicted of capital murder in Texas and sentenced to death; state direct and post-conviction review were unsuccessful.
Tracy sought appointment of federal habeas counsel under 18 U.S.C. § 3599 and requested specific counsel (an attorney in Pennsylvania and the Capital Habeas Unit); the district court appointed different court‑appointed counsel instead.
Tracy filed a pro se motion to substitute the court‑appointed counsel, alleging poor communication, inadequate representation, and requesting his originally requested and state habeas counsel.
The district court denied the substitution motion, finding appointed counsel conflict‑free and competent; it also declined to appoint potentially conflicted state habeas counsel.
Tracy filed an interlocutory appeal of the denial and simultaneously proceeded with a § 2254 petition through his court‑appointed counsel.
The Fifth Circuit considered whether it had interlocutory jurisdiction under the collateral‑order doctrine and concluded it did not because the order was not “effectively unreviewable” on appeal from a final judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Fifth Circuit has jurisdiction under the collateral‑order doctrine to review denial of a pro se motion to substitute federal habeas counsel	Tracy: the denial meets collateral‑order prongs and immediate review is necessary to protect § 3599 counsel rights	Lumpkin: the collateral‑order doctrine does not apply; interlocutory review is improper	Dismissed for lack of jurisdiction; collateral‑order doctrine does not apply because the order is not effectively unreviewable
Whether the denial is "effectively unreviewable" on appeal from a final judgment	Tracy: delay would imperil right to counsel and make relief meaningless	Lumpkin: the decision can be reviewed after final judgment; precedent allows review on direct appeal from final judgment	Not effectively unreviewable; analogous habeas and disqualification precedents show final‑judgment review is adequate

Will v. Hallock, 546 U.S. 345 (doctrine elements for collateral‑order jurisdiction)
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (narrow scope and third‑prong stringency for collateral‑order)
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863 (collateral‑order doctrine as a practical construction of § 1291)
Vantage Health Plan, Inc. v. Willis‑Knighton Med. Ctr., 913 F.3d 443 (definition and application of "effectively unreviewable")
Thomas v. Scott, 47 F.3d 713 (appointment of counsel in § 2254 proceedings not reviewable under collateral‑order)
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (denial of disqualification in civil case not collateral‑order)
Flanagan v. United States, 465 U.S. 259 (denial of disqualification in criminal case not interlocutory exception)
United States v. Minor, 714 F.3d 319 (challenge to substitution reviewed on appeal from final judgment)
United States v. Fields, 483 F.3d 313 (review of counsel appointment/conflict claims on appeal)
Crain v. Sec'y, Fla. Dep't of Corr., 918 F.3d 1294 (11th Cir.: motion to substitute habeas counsel in § 2254 not collateral‑order)