Frank L. Amodeo v. USA

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 18-1 1335
Non-Argument Calendar
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D.C. Docket No. 6:11-cv-01850-JA-GJK

FRANK L. AMODEO,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 12, 2020)
Before WILLIAM PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:
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Frank Louis Amodeo, a federal prisoner, appeals the denial of his motions to
reopen his second motion to vacate his sentence, 28 U.S.C. § 2255, and his related
motion for appointed counsel. Fed. R. Civ. P. 60(b). The government moves to
dismiss Amodeo’s appeal for lack of jurisdiction for failure to obtain a certificate
of appealability, see 28 U.S.C. § 2253(c), and Amodeo responds that a certificate is
unnecessary to appeal the order denying his motion fo r appointed counsel. Amodeo
does not dispute that he must have a certificate of appealability to appeal the order
denying his Rule 60(b) motions, see Gonzalez v. Sec’y for Dep’t of Corr., 366 F.3d
1253, 1263 (11th Cir. 2004) (en banc), and because he cannot satisfy the
requirements to obtain one, we deny him a certificate, grant in part the motion of
the government, and dismiss the issues related to his motions to reopen. But
because Amodeo needs no certificate of appealability to appeal the order denying
his motion for appointed counsel, see Crain v. Sec’y, Fla. Dep’t of Corr., 918 F.3d
1294, 1295 & n.1 (11th Cir. 2019), we affirm that order.
I. BACKGROUND
For the better part of a decade, Amodeo has argued, without success, that he
is mentally ill in an effort to overturn his convictions for one count of conspiring to
defraud the United States, 18 U.S.C. § 371, one count of obstructing an agency
investigation, id. § 1505, and three counts of failing to remit payroll taxes, 26
U.S.C. § 7202. On direct appeal, we rejected as meritless Amodeo’s argument that
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the district court failed to ensure that he was competent to plead guilty. United
States v. Amodeo, 387 F. App’x 953, 954 (11th Cir. 2010). Later, the district court
dismissed Amodeo’s first motion to vacate, 28 U.S.C. § 2255, in which he argued
that he was incompetent to plead guilty, and we denied Amodeo’s application for a
certificate of appealability. Amodeo v. United States, No. 11 -16083 (11th Cir. June
14, 2012). After the district court dismissed Amodeo’s second motion to vacate
without prejudice for exceeding page limitations, we denied Amodeo’s application
for a certificate of appealability for “fail[ure] to make a substantial showing of the
denial of a constitutional right” because he “was given numerous opportunities . . .
to amend his motion with clear instructions from the district court” and because
“his filings ma[de] clear that he . . . intended to continue requesting that the court
allow him to file a longer pleading.” Amodeo v. United States, No. 12-11930 (11th
Cir. Dec. 10, 2012). Recently, we rejected Amodeo’s argument that his mental
illness constituted an extraordinary circumstance that tolled the time to file his
third motion to vacate. Amodeo v. United States, No. 15-15280, slip op. at 4–5
(11th Cir. Jan. 22, 2020).
In 2016, Amodeo moved, without success, to reopen his second motion to
vacate. Fed. R. Civ. P. 60(b). Amodeo argued that the district court should have
assessed his competence before dismissing his second motion to vacate, and he
submitted two expert reports from 2008 that stated his bipolar disorder rendered
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him incapable of proceeding pro se. The district court denied Amodeo’s motion to
reopen as untimely, Fed. R. Civ. P. 60(c)(1), and we denied his application for a
certificate of appealability, Amodeo v. United States, No. 16-11728 (11th Cir. Jan.
6, 2017). We concluded that reasonable jurists would not find debatable the
decision to deny Amodeo’s motion to reopen as untimely when “it was filed over
three years after the district court’s judgment and this Court’s denial of a COA.”
Id., slip op. at 4. And we concluded that Amodeo “failed to show extraordinary
circumstances” because, “[c]ontrary to his assertion[], the district court . . . was not
required to conduct an evidentiary hearing as to his mental capacity at the time of
the filing . . . .” Id.
Amodeo lately has filed a salvo of motions to reopen his second motion to
vacate based on his mental incompetency and a motion for appointed counsel. Fed.
R. Civ. P. 60(b). Amodeo’s legal guardian, Charles Rahn, moved to reopen on the
ground that the district court should have known that Amodeo was incapable of
litigating his second motion to vacate and appointed him a guardian or attorney.
Rahn submitted a report from a psychologist who opined that, as of April 2017,
Amodeo lacked the capacity to proceed pro se and that, between 2009 and 2012,
his medications caused him to suffer from cognitive deficits. The district court
denied the motion to reopen as untimely and for “failure to demonstrate any of the
factors set forth in Rule 60(b) or to provide any other basis for reconsideration of
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[its] Order of February 7, 2012,” and denied Amodeo a certificate of appealability.
Rahn next filed two amended motions to reopen that included a request for
appointed counsel, but the district court denied the amended motions for “failure to
present any basis for relief” and denied certificates of appealability. Rahn then filed
a motion to appoint counsel, which the district court denied summarily.
Rahn filed a notice of appeal on Amodeo’s behalf without requesting a
certificate of appealability from this Court. See 28 U.S.C. § 2253(c)(1). Because
Rahn could not serve as legal counsel for Amodeo, see Martin-Trigona v. Shaw,
986 F.2d 1384, 1388 n.1 (11th Cir. 1993), we granted Amodeo’s motion for
appointed counsel.
After Amodeo filed his initial brief, the government moved to dismiss the
appeal for lack of jurisdiction. See 28 U.S.C. § 2253(c). Amodeo responds that he
is not required to obtain a certificate of appealability to appeal the denial of his
request for appointed counsel and that he is entitled to assistance to litigate his
motion to reopen. In the alternative, Amodeo argues that he is entitled to a
certificate of appealability to appeal the denial of his motions to reopen.
II. STANDARD OF REVIEW
We review de novo issues regarding our jurisdiction. Williams v. Chatman,
510 F.3d 1290, 1293 (11th Cir. 2007).

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III. DISCUSSION
We divide our discussion in two parts. First, we explain why Amodeo is not
entitled to a certificate of appealability. Second, we explain why the district court
did not abuse its discretion when it denied Amodeo’s motion for appointed counsel.
A. Amodeo is Not Entitled to a Certificate of Appealability.
This court has “limited jurisdiction, possessing only that power authorized
by Constitution and statute.” Gunn v. Minton, 568 U.S. 251, 256 (2013) (internal
quotation marks omitted). We have authority to review “final decisions of the
district courts.” 28 U.S.C. § 1291. But “an appeal may not be taken to the court of
appeals from . . . the final order in a proceeding under 2255” unless the federal
prisoner obtains a certificate of appealability. 28 U.S.C. § 2253(c)(1)( B).
Amodeo is required to obtain a certificate of appealability to appeal the
orders denying his motions to reopen. Those decisions were final orders that
prevented Amodeo from revisiting his proceeding under section 2255. Hamilton v.
Sec’y, Fla. Dep’t of Corrs., 793 F.3d 1261, 1265 (11th Cir. 2015); Gonzalez, 366
F.3d at 1263. It matters not whether Amodeo’s motion was denied as untimely
instead of on the merits because “Slack v. McDaniel[, 529 U.S. 473, 484-85 (2000),
held] that a COA is required to appeal the denial of a claim solely on procedural
grounds.” Hamilton, 793 F.3d at 1265.
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To obtain a certificate of appealability, Amodeo has to make “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because
the district court based its decision on Federal Rule of Civil Procedure 60(b),
Amodeo must prove “that jurists of reason would find it debatable whether the
[motions] state[] a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Under Rule 60(b), the district court had
wide discretion to determine whether Amodeo moved within a reasonable time to
reopen his earlier proceeding. Cano v. Baker, 435 F.3d 1337, 1341 (11th Cir. 2006).
Reasonable jurists would not debate the decision to deny Amodeo’s motions
to reopen as untimely. Amodeo sought to reopen a judgment that was more than
five years old. Amodeo long had known of his mental impairments and had, in that
interim, proved capable of pursuing postconviction relief diligently. The district
court did not abuse its discretion by rejecting an argument that it considered one
year earlier and that we determined did not merit a certificate of appealability.
B. The District Court Did Not Abuse Its Discretion by Denying Amodeo’s Motion
for Appointed Counsel.

Amodeo did not need a certificate of appealability to appeal the order
denying his motion to appoint counsel. See Harbison v. Bell, 129 S. Ct. 1481, 1485
(2009) (“An order . . . that denies a motion for appointment of counsel . . . is not . .
. subject to the COA requirement.”). And the order was final and appealable, 28
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U.S.C. § 1291, because Amodeo’s postconviction proceeding was no longer
pending and “nothing remained for the court to do.” See Crain, 918 F.3d at 1295 &
n.1. So we may review that order.
The district court did not abuse its discretion by denying Amodeo’s motion
for appointed counsel. See United States v. Webb, 565 F.3d 789, 793 (11th Cir.
2009). Amodeo had “no federal constitutional right to counsel in [his]
postconviction proceedings,” Barbour v. Haley, 471 F.3d 1222, 1227 (11th Cir.
2006); see Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), nor did “the interests
of justice or due process so require” that he receive legal assistance, Schultz v.
Wainwright, 701 F.2d 900, 901 (11th Cir. 1983); 18 U.S.C. § 3006A(a)(2)(B). It
would have been futile to appoint counsel for Amodeo to pursue a claim that was
untimely. And Amodeo did not need the aid of an attorney because he had a legal
guardian acting on his behalf. See Fed. R. Civ. P. 17(c).
IV. CONCLUSION
We GRANT in part the motion of the government and DISMISS for lack of
jurisdiction Amodeo’s challenge to the denial of his motions to reopen. We
AFFIRM the denial of Amodeo’s motion for appointed counsel.
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