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United States v. Hines

September 28, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
COREY HINES, DEFENDANT.



The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER

REAGAN, District Judge

On September 15, 2009, Defendant, Corey L. Hines, filed a pro se Notice of Interlocutory Appeal, challenging the Court's September 9 ruling that he is competent to proceed to trial (Docs. 127, 129). Defendant filed a second pro se Notice of Appeal on September 29, challenging the Court's September 11 ruling that he has waived his right to represent himself at trial (Docs. 128, 136). Despite the filing of these interlocutory notices of appeal, the Court finds that it retains jurisdiction over this case and that this case may proceed to trial.

I. Legal Standards

"Appellate jurisdiction is generally limited to review of 'final decisions' by the district courts." United States v. Ewing, 494 F.3d 607, 614 (7th Cir. 2007), citing 28 U.S.C. § 1291. "This limitation embodies a strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals." Id., citing United States v. Nixon, 418 U.S. 683, 690 (1974). "In the criminal context, the general rule is that an appeal may not be taken until a sentence has been imposed." Id., citing Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir. 1997).

"The general rule ... that an appeal suspends the district court's power to proceed further in a cause ... has no application where there is a purported appeal from a non-appealable order. United States v. Cannon, 715 F.2d 1228, 1231 (7th Cir. 1983), citing United States v. Bastanipour, 697 F.2d 170, 173 (7th Cir. 1982). "[W]here a defendant's motion to dismiss ... is frivolous or fails to raise a colorable claim..., the mere filing of a Notice of Appeal is insufficient to divest the district court of jurisdiction." Id., citing United States v. Dunbar, 611 F.2d 985 (5th Cir. 1980).

II. Analysis

A. Defendant's Interlocutory Notices of Appeal Relate to Non-Final Orders

First, Defendant's appeal of the Court's ruling that he is competent to proceed to trial is not a final, appealable order. The competency issue does not "fall into the small class of orders that courts have found immediately appealable." United States v. Mandycz, 351 F.3d 222, 225 (6th Cir. 2003). The issue is fully reviewable on appeal after final judgment and entails no "uncorrectable loss of liberty." Id.

Even if the Court's competency ruling were amenable to interlocutory review, Defendant's appeal is frivolous. He has maintained both in written pleadings and orally - when he has chosen to speak - that he is competent to proceed and that no competency evaluation was needed. His appeal of an Order that accords with what he has always maintained to be true is manifestly frivolous. See Cannon, 715 F.2d at 1231 (proceeding with trial proper where interlocutory appeal was frivolous).

For these reasons, Defendant's interlocutory notice of appeal as to this issue does not divest this Court of jurisdiction to proceed.

Second, Defendant's appeal of the Court's ruling that he waived his right to proceed pro se is not a collateral order or otherwise subject to appeal. The Supreme Court provided guidance on this issue in Flanagan v. United States, 465 U.S. 259 (1984). In Flanagan, the Court decided that a district court's pretrial disqualification of defense counsel in a criminal prosecution was not immediately appealable. 465 U.S. at 260. "An order disqualifying counsel lacks the critical characteristics that make orders denying bail reduction or refusing to dismiss on double jeopardy ... grounds immediately appealable. Unlike a request for bail reduction, a constitutional objection to counsel's disqualification is in no danger of becoming moot upon conviction and sentence." Id. at 266. The Court noted that the counsel of choice issue "is like, for example the Sixth Amendment right to represent oneself" and that "post-conviction review of a disqualification order is fully effective." Id. at 267-68, citingFaretta v. California, 422 U.S. 806 (1975). It is evident from the Supreme Court's analysis that an order finding that a defendant has waived his right to proceed pro se is analogous to an order disqualifying counsel and, as such, lacks the critical characteristics that make it immediately appealable.

For these reasons, Defendant's interlocutory notice of appeal as to this issue does not divest this Court of jurisdiction to proceed.

Third, in the Court's orders finding Hines competent to proceed to trial and finding that he had waived his right to represent himself at trial, the Court also denied various pending motions. The first three of these motions (Docs. 92, 94 and 99) related specifically to Defendant's desire to prove himself competent to proceed and were rendered moot when the Court found him competent. As set forth above, to ...


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