Richard Rojem appeals the district court’s denial of his Ex Parte Motion for De Novo Review of Preliminary Budget and his Ex Parte Motion for Approval of Funding for Expert Assistance, which he filed in his pending 28 U.S.C. § 2254 federal habeas proceeding. Because this appeal, at its core, challenges the district court’s decision regarding how much compensation to award counsel, this court dismisses for lack of jurisdiction.
Background
In 1985, Mr. Rojem was convicted of first-degree murder, kidnaping, and rape. He was sentenced to death. After he unsuccessfully pursued relief in the Oklahoma courts, he filed a § 2254 application in federal district court. The court denied relief as to the convictions, but cоnditionally granted relief from the death sentence. This court affirmed.
See Rojem v. Gibson,
As authorized by 18 U.S.C. § 3599(a)(2), the district court appointed counsel to assist Mr. Rojem in preparing his § 2254 application. In the Preliminary Litigation Budget, beyond the listed potential habeas issues arising from the third sentencing proceeding, Mr. Rojem also sought funding for an investigation of the guilt phase. Pointing to the 2003 American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Dеath Penalty Cases, Mr. Rojem argued that counsel was required to undertake an extensive pre-petition investigation. He asserted that he could file for authorization of a second or successive § 2254 application based on guilt-phase issues identified in his Preliminary Litigation Budget and could seek state clemency. The magistrate judge, however, limited the budget to compensation for work on penalty-stage claims and minimal review of the record for background and history. Thus, he approved only forty-five percent of the total requested for counsel’s fees and expenses.
Mr. Rojem requested that the district court undertake a de novo review of the magistrаte judge’s decision. He argued:
Counsel believes the Preliminary Litigation Budget submitted to [the magistrate judge] provides for reasonably necessary compensation for counsel based on the penalty stage claims preserved in state court proceedings since the most recent 2007 trial and claims ... that have not been thoroughly аnd competently investigated by counsel that have adequate training and experience to identify forensic and Constitutional issues.
... [T]here are potentially meritоrious issues that must be investigated by counsel....
R., Vol. 2 at 7. Mr. Rojem also stated that “[s]ince the decision in
Harbison v. Bell,
[
*1201 In addition to the motion for de novo review, Mr. Rojem submitted a separate motion for approval of “expert funding which is reasonably necessary to assist[] counsel in the preparation of Mr. Rojem’s federal Constitutional claims in his 28 U.S.C. § 2254 Federal Habeas petition.” Id. at 61. In that motion, Mr. Rojem asserted the need for expert assistance related to specified issues in the guilt phase. He further asserted that any new evidence could be used for state clemency proceedings.
The district court denied both motions in a single order, stating:
Beсause Petitioner has already sought and been denied relief on guilt stage issues before both this Court and the Tenth Circuit in the prior habeas corpus action, the matter of Petitioner’s guilt is not before the Court. In the present action, Petitioner can challenge only those issues arising out of his third re-sentencing in 2007. It is clear that if Petitioner wishes to аttack his original convictions, his redress lies with the Tenth Circuit and his satisfaction of the rules regarding second and successive petitions.
In the motions currently before the Court, Pеtitioner’s court-appointed counsel seeks an increased budget and expert assistance to pursue matters related to Petitioner’s guilt. The Court has reviewed the motions and found that both should be denied. Because the issue of guilt is not before the Court, counsels’ requests are not “reasonably necessary” to their represеntation of Petitioner. Given the limited nature of this action, a budget of [$_] is reasonable and expert assistance for the purpose of reinvestigating Petitioner’s guilt is unneсessary.
Id. at 319-20 (citations and footnote omitted).
Analysis
In a briefing order, Mr. Rojem was directed to discuss whether this court has jurisdiction to entertain this appeal in light of
United States v. French,
The Supreme Court in
Harbison
subsequently held that a district court’s denial of counsel under § 3599 for state clemency proceedings was appealable under 28 U.S.C. § 1291.
See Harbison,
Mr. Rojem correctly asserts that as a prisoner facing the death penalty, he has a right to appointed counsel for his § 2254 proceeding and “every subsequent stage of available judicial proceedings,” as well as “proceedings for executive or other clemency as may be available to the defendant.” 18 U.S.C. § 3599(a)(2), (e). In ad *1202 dition, he has a right to “investigative, expert, or other reasonably necеssary services,” id. § 3599(a)(2), and the district court has the authority to compensate providers of “investigative, expert, or other services” upon finding that such services “arе reasonably necessary for the representation of the defendant,” id. § 3599(f). But contrary to Mr. Rojem’s contentions on appeal, a reading of the district court’s decision does not indicate that the court denied fees for all time for the pursuit of any judicial remedies, such as a second or successive § 2254 proceeding or an original habeas proceeding, or even fees for state clemency proceedings. Rather, the court determined the requested amounts were not reasonably necessary for the matter then before it.
In
Harbison,
the рrisoner explicitly requested counsel for state clemency proceedings after the denial of his § 2254 application.
Rather than a complete denial of counsel, then, as in
Harbison,
this appeal boils down to a dispute about the district court’s decision to award an amount less than the requested amount for representation in the pending § 2254 proceeding. This court has determined that such “district court CJA fee determinations are not appealable orders.”
French,
The appeal is DISMISSED for lack of jurisdiction. Counsel’s motion for interim payment of fees on appeal is DENIED AS MOOT.
Notes
. Although § 3599 is not codified in the same section as the remainder of the CJA, courts have treated it as being part of the CJA.
See, e.g., In re Carlyle,