Filed: Jun. 08, 2012
Latest Update: Jun. 08, 2012
Summary: ORDER JAMES R. MARSCHEWSKI, Chief Magistrate Judge. The Defendant filed a Notice of Appeal (ECF No. 185) to the Court Order (ECF No. 184) Denying his Motion for Reimbursement of Retainer (ECF No. 183). The Defendant now moves to proceed In Forma Pauperis (ECF No. 188). The Defendant was convicted at a jury trial on October 2010 of conspiracy and possession with intent to distribute in excess of 500 grams of methamphetamine and three counts of delivery. He was sentenced to life imprisonment on
Summary: ORDER JAMES R. MARSCHEWSKI, Chief Magistrate Judge. The Defendant filed a Notice of Appeal (ECF No. 185) to the Court Order (ECF No. 184) Denying his Motion for Reimbursement of Retainer (ECF No. 183). The Defendant now moves to proceed In Forma Pauperis (ECF No. 188). The Defendant was convicted at a jury trial on October 2010 of conspiracy and possession with intent to distribute in excess of 500 grams of methamphetamine and three counts of delivery. He was sentenced to life imprisonment on ..
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ORDER
JAMES R. MARSCHEWSKI, Chief Magistrate Judge.
The Defendant filed a Notice of Appeal (ECF No. 185) to the Court Order (ECF No. 184) Denying his Motion for Reimbursement of Retainer (ECF No. 183). The Defendant now moves to proceed In Forma Pauperis (ECF No. 188).
The Defendant was convicted at a jury trial on October 2010 of conspiracy and possession with intent to distribute in excess of 500 grams of methamphetamine and three counts of delivery. He was sentenced to life imprisonment on count one, and 20 years on counts two, three and five all to run concurrently. (ECF No. 176, p. 2). The Defendant retained Jeffrey Harrelson to represent him on appeal and a Notice was filed on May 10, 2011 and the appeal filing fee paid (ECF No. 172). A transcript was ordered and paid for (ECF No. 178). Mr. Harrelson is still listed as the attorney of record concerning the Defendant's case and the appeal is still pending.
On April 3, 2012, almost one year after judgment was imposed, the Defendant filed a pro se motion seeking to have the trial court order his previously retained trail attorney to refund a $25,000 retainer. The trial court dismissed the motion because the Defendant is currently represented by retained counsel. (See Abdullah v. U.S. 240 F.3d 683, 686 (C.A.8 (Mo.),2001) holding that a represented party must file pleadings through his attorney.)
The court finds that the action fails to state a claim upon which relief can be granted. The fee dispute between the Defendant and his retained trial counsel is not an ancillary jurisdictional matter and resolving the state law contract claim will not effect the final judgment in the criminal case. (See U.S. v. Afremov 611 F.3d 970, 976 (C.A.8 (Minn.),2010)).
In addition the court notes that the Defendant initially retained private counsel on the criminal charge, retained private counsel on the appeal, paid the appeal filing fee, and paid for the cost of the transcript. The record also shows that at the time of filing the Defendant had sufficient funds in his prison account to pay the appeal fee.
For the reasons stated above the Motion for Leave to Appeal In Forma Pauperis (ECF No. 188) is DENIED.
IT IS SO ORDERED.
