Opinion

Smith-Bey v. Petsock

  • 741 F.2d 22
Court
Court of Appeals for the Third Circuit
Filed
Aug 23, 1984
Status
Published
Author
Gibbons
On the bench
Gibbons, Maris
Cited by
164 cases
Authority
More cited than 19.4%

concluding that a district court order denying a motion for appointment of counsel may normally be reviewed only after a final judgment has been entered in the case

How later courts described this case

  • concluding that a district court order denying a motion for appointment of counsel may normally be reviewed only after a final judgment has been entered in the case
  • finding that disqualification orders are appropriately reviewable upon final judgment
  • noting that orders denying appointed counsel, whether in civil or criminal cases, are only reviewable after final judgment has been entered
  • an order denying a motion for appointment of counsel may be reviewed only on appeal from the final judgment to be entered in the case

Written by the judges who cited it.

The opinion

GIBBONS, Circuit Judge,

dissenting:

In my view the issue of appealability is controlled by our decision in Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.1981), which was decided subsequent to Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 , 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981).

The majority errs by concluding that Flanagan v. United States, — U.S.-, 104 S.Ct. 1051 , 79 L.Ed.2d 288 (1984), reversed Ray v. Robinson. The third Coopers v. Lybrand prong is satisfied because, unlike the circumstance in Flanagan , only a second trial will suffice to correct an erroneous denial of counsel for a pro se litigant; Flanagan’s reference to adequate post-conviction relief clearly referred to post-conviction proceedings on the original record, not a second trial. The second Coopers v. Lybrand prong is satisfied because assignment of counsel requires only a tentative review of probability of success; this court has already held that such a tentative review satisfies the second prong of Coopers v. Lybrand. Britton v. Howard Savings Bank, 727 F.2d 315, 320-22 (3d Cir. 1984).

This panel is not free to disregard the binding Third Circuit precedent in Ray v. Robinson. Since the order is appealable, I would dispose of the appeal on the merits. On this record I would hold that the trial court did not abuse its discretion in denying the motion to appoint counsel. Thus I dissent from the judgment dismissing the appeal.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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