           Case: 17-11029   Date Filed: 12/28/2017   Page: 1 of 16


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-11029
                       ________________________

                D.C. Docket No. 5:16-cv-00590-WTH-PRL



BILL PAUL MARQUARDT,

                                                         Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                      Respondents - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (December 28, 2017)

Before ED CARNES, Chief Judge, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Bill Paul Marquardt, a prisoner sentenced to death, filed an action pursuant

to 28 U.S.C. § 2254, challenging his conviction and sentence. During the course of

the district-court proceedings, the district court denied Marquardt’s motion to

proceed pro se and for appointment of standby counsel, as well as his motion to

fire appointed counsel. Over Marquardt’s objection, the district court also granted

appointed counsel’s motion to stay the § 2254 proceedings pending resolution of

state proceedings that appointed counsel initiated to exhaust state remedies.

Marquardt seeks to interlocutorily appeal all of these orders.

                                                I.

                                                A.

      Marquardt was charged by the State of Florida with, among other crimes, the

first-degree murders of Margarita Ruiz and her daughter Esperanza “Hope” Wells.

Before the trial, Marquardt decided that he wished to represent himself. After a

Faretta1 inquiry, the state court allowed Marquardt to proceed pro se and

appointed the Office of Regional Criminal Conflict and Civil Regional Counsel

(“CCCRC”) to act as standby counsel.

      As relevant here, a jury convicted Marquardt of both counts of first-degree

murder.      Marquardt then waived a penalty-phase jury recommendation and

proceeded to sentencing before the trial judge. He once again elected to represent


      1
          Faretta v. California, 422 U.S. 806 (1975).
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himself during the penalty phase. At the penalty phase, Marquardt chose not to

present mitigation evidence, instead stating that it was in his best interest to receive

the death penalty.     In support of that position, Marquardt presented several

aggravating circumstances that he argued justified the imposition of the death

penalty.

      The trial court appointed previously appointed standby counsel (CCCRC) to

assist the trial court by presenting mitigation evidence. CCCRC did so.

      Ultimately, the trial court imposed the death penalty, concluding that the

four aggravating factors it found outweighed the two mitigating factors it found.

                                          B.

      In September 2016, Marquardt filed a pro se petition for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2254.           After the magistrate judge granted

Marquardt leave to proceed in forma pauperis, Marquardt filed several motions.

As relevant here, he moved to appoint standby counsel for his § 2254 proceedings.

In his motion, he stated that he wished to represent himself and have standby

counsel available to assist him if the need arose.

      The State of Florida opposed the motion. It noted that Florida had appointed

Marquardt counsel in the form of the Office of Capital Collateral Regional Counsel

(“CCRC-M”), to assist in state and federal post-conviction proceedings, and

Marquardt had not identified any conflicts or deficiencies with appointed counsel.


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      Marquardt responded by moving to fire CCRC-M counsel. In his motion he

complained that counsel had sought a new trial for him in state court, based on a

claim that Marquardt was not competent and should not have been allowed to

represent himself. Marquardt also sought a competency hearing.

      When CCRC-M made an appearance in this case on December 15, 2016, it

noted that it had been appointed to represent Marquardt in state court on May 4,

2015, had filed its notice of appearance three days later, and had continuously

represented him since that time. Counsel then recounted that two motions it had

filed were then pending before the Florida courts:        (1) a motion to vacate

convictions and sentences, pursuant to Fla. R. Crim. P. 3.851; and (2) a motion for

determination of competency, pursuant to Fla. R. Crim. P. 3.851(g). Counsel

further asserted that it had a “good faith basis to believe [Marquardt] is currently

incompetent to proceed” and noted that the state trial court had recently appointed

three doctors to determine Marquardt’s competency. Because of this, counsel

stated, the state court did not intend to proceed on Marquardt’s Rule 3.851 motion

until the competency issue was resolved. Finally, counsel opined that Marquardt

had “numerous meritorious post-conviction claims that were not included in his

limited pro se petition and which remain unexhausted in state court.” For this

reason, counsel suggested that Marquardt’s § 2254 proceeding be stayed and




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abeyed, and counsel offered to file an amended petition that included all of

Marquardt’s post-conviction claims.

      On December 20, 2016, a magistrate judge denied Marquardt’s motion for

appointment of standby counsel and leave to proceed pro se and his motion to fire

appointed CCRC-M. But the magistrate judge granted CCRC-M’s motion to hold

the case in abeyance.

      This ruling precipitated a second wave of motions from Marquardt. Among

others, Marquardt filed a second motion for appointment of standby counsel and a

motion for reconsideration of the magistrate judge’s December 20, 2016, order.

      In the meantime, CCRC-M filed a status report noting that the state court

had directed the three appointed doctors to evaluate Marquardt’s competency and

submit written reports by March 13, 2017. It also asked the court to continue to

hold the case in abeyance.

      On February 22, 2017, the district court denied Marquardt’s motion for

reconsideration of the magistrate judge’s December 20, 2016, order.         More

specifically, the district court agreed with the magistrate judge’s denial of

Marquardt’s motion to fire CCRC-M and proceed pro se with the appointment of

standby counsel. Along the same lines, the district court also denied Marquardt’s

second motion for appointment of standby counsel. In its order, the district court

also granted CCRC-M’s motion to continue to hold the case in abeyance pending


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counsel’s filing of a motion to stay and abey, along with a motion to amend

Marquardt’s § 2254 petition to add the claims that Marquardt had not included in

his original filing. 2

       Marquardt appeals the district court’s February 22, 2017, order. In his

notice of appeal, Marquardt states he specifically challenges the district court’s

decisions to hold his § 2254 petition in abeyance and to deny standby counsel.

                                             II.

       We begin with the district court’s denial of Marquardt’s motion for

appointment of standby counsel and the related issues it raises, namely the denial

of Marquardt’s request (1) to fire appointed counsel; (2) to proceed pro se; and (3)

for the appointment of standby counsel. Before we may address the merits of

Marquardt’s appeal of these issues, however, we must first satisfy ourselves that

we have jurisdiction. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th

Cir. 1999) (“[A] federal court is obligated to inquire into subject matter jurisdiction

sua sponte whenever it may be lacking.”).

       As a general rule, we have jurisdiction to review only “final decisions of the

district courts.” 28 U.S.C. § 1291; Firestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 373 (1981). We have explained that a final decision “ends the litigation

       2
         CCRC-M has since filed a motion seeking to amend the § 2254 petition and to hold the
proceedings in abeyance pending resolution of the state proceedings, and the district court
granted the motion. Following the entry of this order, in November, CCRC-M reported that all
three doctors appointed to evaluate Marquardt have opined that he is not competent to proceed.
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on the merits and leaves nothing for the court to do but execute the judgment.”

CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000)

(citation and quotation marks omitted).

      But every rule has an exception. And as relevant here, the collateral-order

doctrine provides that we may review an order that does not end the litigation on

the merits if three conditions are satisfied:   the order must (1) “conclusively

determine the disputed question”; (2) “resolve an important issue completely

separate from the merits of the action”; and (3) “be effectively unreviewable on

appeal from a final judgment.” Risjord, 449 U.S. at 375 (citation and quotation

marks omitted). When these circumstances apply, the interlocutory order sought to

be appealed is essentially considered a “final judgment,” so it is reviewable. See

Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989). Nevertheless,

the Supreme Court has emphasized that the collateral-order exception is a

“narrow” one.” Id.

      In determining whether an issue qualifies for interlocutory appeal, we do not

conduct an “individualized jurisdictional inquiry.”      Mohawk Indus., Inc. v.

Carpenter, 558 U.S. 100, 107 (2009) (citation and quotation marks omitted).

Instead, we consider “the entire category to which a claim belongs.” Id. (citation

and quotation marks omitted). This means that we evaluate whether “the class of

claims, taken as a whole, can be adequately vindicated by other means.” Id.


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(citation and quotation marks omitted). Only if it may not may the issue qualify

for interlocutory review under the collateral-order doctrine. Id.

      Keeping these considerations in mind, we first note that we have held that an

order denying a motion for leave to proceed pro se is immediately appealable

under the collateral-order doctrine. Devine v. Indian River Cty. Sch. Bd., 121 F.3d

576, 578-81 (11th Cir. 1997), overruled in part on other grounds by Winkelman ex

rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516 (2007). In Devine, we

explained that the second prong of the collateral-order doctrine—that the appeal

“resolve an important issue completely separate from the merits of the action”—is

met in an appeal of the denial of a motion to proceed pro se when the denial is

“separate from the merits of the underlying claim.” Id. at 579. And the third

circumstance—that the denial be effectively unreviewable from a final judgment—

is satisfied because the right to self-representation “is effectively lost if not

immediately vindicated. The harm in erroneously denying a party leave to proceed

pro se is that it injures his/her dignity and autonomy, and this harm cannot be

repaired after a judgment on the merits.” Id. at 580.

      Florida suggests, however, that the district court’s denial of authorization for

Marquardt to proceed pro se is not immediately appealable because the decision

fails to fulfill the first collateral-order-doctrine requirement: in particular, Florida

asserts that “the court could still reverse its decision and grant Marquardt’s request


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at a later time.” True, but a district court may always reverse an earlier decision,

and the court could have done that in the Devine case as well. And here, the order

is phrased in conclusive terms and agrees with the magistrate judge’s

determination that “allowing [Marquardt] to proceed pro se will not promote the

integrity and efficiency of the federal proceedings.” This conclusion is neither

conditional nor limited. Rather, the order relies on circumstances that are highly

unlikely to change, namely the complexity of the case and Marquardt’s lack of

understanding of the proceedings:

                   [Marquardt’s] lack of understanding of the
                   proceedings both in state and federal court
                   underscore why his request for self-representation
                   was denied. The Magistrate Judge correctly found
                   that [Marquardt’s] counsel are experienced post-
                   conviction attorneys and there is nothing before
                   the Court to reflect any deficiencies in their
                   representation. Counsel’s efforts to pursue and
                   preserve [Marquardt’s] claims, along with the
                   competency issues that are being addressed by
                   them in state court, also underscore why his
                   requests for standby or different counsel are
                   denied.

      We therefore disagree with Florida that the order does not speak in terms

sufficiently conclusive to meet the collateral-order doctrine’s first requirement.

Because all three collateral-order-doctrine conditions are satisfied, we have

jurisdiction to review on interlocutory appeal the district court’s denial of

permission to proceed pro se.


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      Having established jurisdiction over the decision to deny pro se status, we

address the merits of this issue. A § 2254 petition—a collateral appeal—is, of

course, a type of appeal. We therefore review for abuse of discretion a district

court’s decision declining to allow a § 2254 petitioner to proceed pro se. See

Martinez v. Ct. of App. of Cal. 4th App. Dist., 528 U.S. 152, 163 (2000) (noting

that courts “may . . . exercise their discretion to allow a lay person to proceed pro

se” on appeal). Here, we find no abuse.

      The Supreme Court has held that the Sixth Amendment “necessarily implies

the right of self-representation” at a criminal trial. Faretta, 422 U.S. 806, 832

(1975). But the Supreme Court has found that no such right exists on appeal.

Martinez, 528 U.S. at 163. As the Court has explained, a criminal defendant is

differently situated at trial than he is on appeal. Id. at 163. At trial, the prosecution

brings the case against a defendant who is presumed innocent. Id. at 162. On

appeal, however, the convicted defendant, who is no longer presumed innocent,

prosecutes the appeal. Id. So unlike a criminal trial, state “appellate proceedings

are simply not a case of haling a person into its criminal courts.” Id. at 163

(citation, internal quotation marks, and alteration omitted). As a result, the balance

between the court’s “interest in ensuring the integrity and efficiency of the trial”

and “the defendant’s interest in acting as his own lawyer” favors the court’s




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interest during an appeal, and a court has the discretion to allow a defendant to

proceed pro se on appeal. Id. at 162-63.

      The district court here declined to allow Marquardt to proceed pro se for

several reasons. It noted that Marquardt “is not formally trained in the law, and the

issues governing his case are complex, including the exhaustion of state remedies

regarding claims that are raised in a federal petition.” In addition, the court

expressed concern over “[t]he issues surrounding [Marquardt’s] competency . . .

and the matter of a potential abeyance” pending the state court’s resolution of

additional claims. The district court also observed that specific CCRC-M counsel

representing Marquardt “are experienced post-conviction attorneys and there [wa]s

nothing before the Court to reflect any deficiencies in their representation.”

Finally, the district court agreed with the magistrate judge’s conclusion that

allowing Marquardt to proceed pro se would “not promote the integrity and

efficiency of the federal proceedings.” Based on this record and reasoning, we

cannot say that the district court abused its discretion in reaching this decision.

      As we have noted, Marquardt also seeks to appeal the district court’s denial

of his motion to terminate appointed counsel and to appoint standby counsel. But

Marquardt seeks reversal of these orders only in connection with his quest to

represent himself. Under these circumstances, the district court’s rulings denying

the motions to terminate appointed counsel and to appoint standby counsel are


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necessarily intertwined with that of authorization to proceed pro se. Because the

district court did not abuse its discretion in declining to allow Marquardt to

proceed pro se, the issues concerning termination of appointed counsel and

appointment of standby counsel are moot.

                                              III.

       We now turn to the district court’s order granting the motion to stay and

abey the proceedings pending resolution of the state proceedings. Once again, we

must begin by considering our jurisdiction. And once again, we recognize the

usual rule that only final judgments may be appealed. But once again, we must

consider whether an exception may apply: this time, it’s the effectively-out-of-

court doctrine. 3

       Though an order staying a federal proceeding generally does not qualify as

final under § 1291 for purposes of appeal, such an order does so qualify if it puts

the appellant “effectively out of court.” Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 10 (1983); see also Hines v. D’Artois, 531 F.2d 726,

730 (5th Cir. 1976). “Effectively out of court” means that the stay, as a practical

matter, has rendered the action “effectively dead,” including a stay that results in

“any extended state of suspended animation.” Id.; see also CTI-Container Leasing


       3
         The collateral-order doctrine and the effectively-out-of-court doctrine are related, but
our predecessor court has explained that they are not the same. See Hines v. D’Artois, 531 F.2d
726, 730 (5th Cir. 1976).
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Corp. v. Uiterwyk Corp., 685 F.2d 1284, 1287 (11th Cir. 1982). In determining

whether the effectively-out-of-court doctrine applies, we also balance the

inconvenience and cost of piecemeal review against the danger of denying justice

by delay. Id.

      Where, as here an order stays a federal case pending the conclusion of

related proceedings in state court, ordinarily, such an order is immediately

appealable because of “[c]oncerns about protecting federal court decisional

authority.” See Miccosukee Tribe of Indians of Fla. v. S. Fla. Water Mgmt. Dist.,

559 F.3d 1191, 1195 (11th Cir. 2009). But in the specific context of an order

granting a stay in a § 2254 action pending exhaustion of state remedies, the answer

is not so clear. Indeed, the entire purpose of the stay in the § 2254 action is to

protect federal jurisdiction over yet-unexhausted claims. So the purpose behind

the ordinary rule rendering final a stay pending the conclusion of related

proceedings in state court does not apply.

      We need not get bogged down in this issue, though, because another

jurisdictional problem precludes us from considering Marquardt’s appeal of the

order granting the stay, regardless of whether the order would otherwise be

appealable under the effectively-out-of-court doctrine. We have explained that

Article III requires litigants to demonstrate their standing “not only to bring claims,

but also to appeal judgments.” Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th


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Cir. 2003). Though we have described the doctrines of trial and appellate standing

as “similar and overlapping,” we have recognized that they are not the same. Id.

“The primary limitation on a litigant’s appellate standing is the adverseness

requirement” that applies peculiarly on appeal. Id. (citation, quotation marks, and

alterations omitted). Specifically, only a litigant whom the district court judgment

aggrieves has standing to appeal. Id. And generally, a party who prevails in the

district court is not harmed and therefore not aggrieved by the district court’s

ruling. Agripost, Inc. v. Miami-Dade Cty., 195 F.3d 1225, 1230 (11th Cir. 1999).

      In this case, we also account for the significant fact that an attorney is

generally deemed to act as the client’s representative. See Maples v. Thomas, 565

U.S. 266, 923 (2012). We have noted that in a habeas case—even a capital case—

a § 2254 petitioner may be bound by his counsel’s strategic decisions, unless the

attorney acts with divided loyalty or in bad faith. See Thomas v. Att’y Gen., Fla.,

795 F.3d 1286, 1295-96 (11th Cir. 2015). On the other hand, under the “next

friend” doctrine established in Whitmore v. Arkansas, 495 U.S. 149 (1990), a

mentally competent petitioner has the right of self-determination and freedom to

make fundamental choices affecting his life, including whether he wishes for the

federal proceedings to be stayed to allow for exhaustion of state remedies. See

Sanchez-Velasco v. Sec’y of Dep’t Corr., 287 F.3d 1015, 1033 (11th Cir. 2002).




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      Here, Marquardt’s competency at this point in time is in real question.4 And

as we have explained, the district court did not abuse its discretion in denying

Marquardt’s motion to proceed pro se. Under these particular circumstances,

Marquardt’s counsel therefore acted on Marquardt’s behalf when counsel moved to

stay the federal proceedings pending exhaustion of the state remedies. This type of

decision is a strategic one by which Marquardt is bound unless counsel sought the

stay in bad faith or with divided loyalty to Marquardt. Nothing in the record

allows us to conclude that counsel here acted either in bad faith or with divided

loyalty to Marquardt. Marquardt is therefore bound by counsel’s decision to seek

the stay. And since counsel, representing Marquardt, prevailed on the motion to

stay, Marquardt is not an aggrieved party. He therefore lacks standing to appeal

the order granting stay. As a result, Article III jurisdiction is lacking, and we

cannot review the district court’s decision granting the stay.

                                               IV.

      For the reasons we have discussed, we affirm the district court’s order

denying Marquardt self-representation. We dismiss as moot that aspect of the

appeal challenging the district court’s denial of Marquardt’s motions to terminate

appointed counsel and for the appointment of standby counsel. And we dismiss

the appeal for lack of jurisdiction as the appeal relates to the district court’s order


      4
          We do not purport to opine on Marquardt’s competency at the time of trial.
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granting a stay of the federal proceedings pending resolution of the state

proceedings.

      AFFIRMED IN PART and DISMISSED IN PART.




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