           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 4, 2008

                                       No. 08-70033                   Charles R. Fulbruge III
                                                                              Clerk

CHARLES DEAN HOOD

                                                  Petitioner-Appellant
v.

NATHANIEL QUARTERMAN, DIRECTOR
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTES DIVISION

                                                  Respondent-Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:99-CV-109



Before SMITH, WIENER, and STEWART, Circuit Judges.
PER CURIAM:*
       Petitioner-Appellant Charles Dean Hood appeals an order of the district
court, entered July 11, 2008, denying his motions for appointment of counsel and
stay of execution. Hood raises only the following issue before this court: “Does
the federal appointment statute, 18 U.S.C. § 3599, provide prisoners sentenced




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                         No. 08-70033

under state law the right to federally appointed and funded counsel to pursue
clemency under state law?”
       We foreclosed this issue in Clark v. Johnson, holding that the statute does
not apply to state clemency proceedings.1 We acknowledge that the Supreme
Court recently granted certiorari in Harbison v. Bell2 to consider the issue and
presumably to address the split among the circuits.3 A prior panel of this court
addressed precisely this issue after the Supreme Court granted certiorari in
Harbison, and again held 18 U.S.C. § 3599 inapplicable to such proceedings.4
Although that decision is unpublished and thus not binding on us, we find it
instructive.
       Accordingly, we AFFIRM the order of the district court and DENY Hood’s
separate motion for stay of execution.




       1
           278 F.3d 459, 462-63 (5th Cir. 2002).
       2
           No. 07-8521, 2008 WL 2484732 (June 23, 2008).
       3
         See, e.g., Hain v. Mullin, 434 F.3d 1168, 1172 (10th Cir. 2006) (“Acknowledging a
circuit split on the issue, we nonetheless see no other logical way to read the statute.”).
       4
         See Turner v. Quarterman, No. 08-70025, 2008 WL 2645674 (5th Cir. July 7, 2008)
(per curiam), petition for reh’g en banc denied (5th Cir. July 10, 2008) (per curiam), cert. denied
and application for stay of execution denied, 2008 WL 2690759 (U.S. July 10, 2008).

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