NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 21-2715

CARL SIMON,

Appellant

v.

GOVERNMENT OF THE VIRGIN ISLANDS

On Appeal from the District Court of the Virgin Islands (D. C. No. 3-03-cv-00024) District Judges: Honorable Wilma A. Lewis

Argued on May 11, 2022

Before: JORDAN, MATEY, and ROTH, Circuit Judges

(Opinion filed March 30, 2023)

Joseph A. DiRuzzo, III Daniel M. Lader (Argued) DiRuzzo & Company 401 East Las Olas Boulevard Suite 1400 Fort Lauderdale, FL 33301

Counsel for Appellant Ian S.A. Clement (Argued) Office of Attorney General of Virgin Islands Department of Justice 34-38 Kronprindsens Gade GERS Complex, 2nd Floor St. Thomas, VI 00802

Counsel for Appellee

O P I N I O N

ROTH, Circuit Judge:

Carl Simon is suing the Government of the Virgin Islands in a habeas corpus

action, collaterally attacking his criminal conviction. Simon seeks reversal of the District

Court’s order, denying appointment of counsel under federal law for his upcoming Virgin

Islands Superior Court evidentiary hearing. Because the District Court’s denial of court-

appointed counsel was not a final, appealable order, we do not have jurisdiction to hear

Simon’s appeal and will dismiss it.

I.

Simon was convicted of burglary, robbery, and felony murder in the Territorial

Court of the Virgin Island, now the Virgin Islands Superior Court. He then filed a petition

for a writ of habeas corpus, which the Superior Court rejected. The District Court, acting

 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 as the only intermediate appellate court at the time, heard argument on the matter and

affirmed the Superior Court.

Simon then appealed to this Court. We held that the lower courts erred in two ways.

The Superior Court erred when it failed to conduct “an evidentiary hearing to address

Simon’s claim that the government had violated its obligations under Brady v. Maryland,

(1963),” and that the District Court had erred when it denied “Simon’s claim

that his trial counsel . . . was ineffective without remanding the matter to the Superior Court

for an evidentiary hearing to address Simon’s allegations that his attorney had a conflict of

interest.”1 We then remanded this case to the Appellate Division of the District Court for

the Virgin Islands with instructions to remand to the Superior Court to conduct an

evidentiary hearing regarding the Brady violation and the conflict-of-interest claim.2

Simon asked the District Court to appoint counsel under the Criminal Justice Act

(CJA). The Magistrate Judge denied Simon’s request: “Inasmuch as the contemplated

proceedings consist of evidentiary hearings that the Superior Court should have conducted

in connection with the habeas petition in that court, this Court is hard-pressed to find a

basis under the Criminal Justice Act to appoint [counsel].”3 The Magistrate Judge also

rejected Simon’s request to reconsider her ruling, stating that “the ongoing habeas

proceedings in this case ‘are wholly local in nature, and this Court has no authority or

obligation to provide counsel to defendant in these circumstances.’”4

1 Appx. at 4. 2 Simon v. Gov’t of the V.I.,

(3d Cir. 2019). 3 Appx. at 18. 4 Appx. at 5 (citation omitted). 3 Simon appealed that order to the Appellate Division of the District Court, and the

District Court affirmed the order. This appeal followed.

II.

We have jurisdiction to review final decisions of the District Court of the Virgin

Islands, Appellate Division.5 The “term ‘final decision’ has a well-developed and

longstanding meaning. It is a decision that ‘ends the litigation on the merits and leaves

nothing more for the court to do but execute the judgment.’”6

However,

“allows appeals also from certain interlocutory orders,

. . . when they have a final and irreparable effect on the rights of the parties.”7 As we held

in Smith-Bey v. Petsock, 8 such interlocutory orders “must finally determine an important

claim of right separable from and collateral to the principal rights asserted in an action and

be effectively unreviewable on appeal from the final judgment.” “To be appealable as a

final collateral order, the challenged order must constitute ‘a complete, formal and, in the

trial court, final rejection,’ of a claimed right ‘where denial of immediate review would

render impossible any review whatsoever.’”9 In Smith-Bey, we concluded that denial of

court-appointed counsel was not a final, appealable order.10

5 48 U.S.C. § 1613a(c). The District Court had jurisdiction under the unique statutory system of the Virgin Islands. 6 Green Tree Fin. Corp.-Alabama v. Randolph,

(2000) (citing Digital Equipment Corp. v. Desktop Direct, Inc.,

(1994) and Coopers & Lybrand v. Livesay,

(1978)). 7 Cohen v. Beneficial Indus. Loan Corp.,

(1949). 8

, 23 (3d Cir. 1984) (citations omitted). 9 Id. (internal and external citations omitted). 10 Id. at 26. 4 Simon argues that although “[a]t first blush, the case sub judice admittedly appears

to fall under the holding of Smith-Bey; however, upon closer examination, because of the

unique statutory scheme and system of appellate review involved, the ordinary

appointment of counsel analysis does not apply.”11 He argues that, because the underlying

territorial habeas action proceeded “from the Superior Court to the District Court (sitting

as an intermediate appellate court) and then to this Court (similar to a state court of last

resort)[,] . . . the federal court system is inextricably integrated into the underlying habeas

action by statutory design” and therefore the issue of federally appointed counsel must be

considered now.12

Despite the Virgin Islands’ unique statutory scheme, the District Court’s decision

about whether to appoint counsel does not render “impossible any review whatsoever.”13

When “the Appellate Division issues a record remand, the Appellate Division retains

jurisdiction over the appeal so that the matter remains pending before it.”14 If, however,

the Appellate Division issues a case remand, the Appellate Division relinquishes

jurisdiction over the appeal, meaning that the matter is no longer pending before it and the

Supreme Court of the Virgin Islands has jurisdiction over any subsequent appeals in the

matter.”15

11 Appellant’s Br. at 3. 12 Appellant’s Br. at 5–6. 13 Smith-Bey, 741 F.2d at 23. 14 V.I. Conservation Soc’y, Inc. v. V.I. Bd. of Land Use Appeals Golden Resorts LLLP,

(3d Cir. 2021) (citation omitted). 15

(citation omitted). 5 Because we previously remanded this case with instructions to the Superior Court

to develop the factual record,16 a record remand, not case remand, took place. Thus, Simon

can appeal the denial of counsel to this Court after a final judgment is entered in his

underlying habeas case. Until then, under Smith-Bey, the District Court’s order is not

reviewable by interlocutory appeal. We accordingly lack jurisdiction.

III.

For these reasons, Simon’s appeal must be dismissed for lack of jurisdiction.

16 Simon,

. 6