United States v. Frank L. Amodeo

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 30, 2020
• Docket: 19-10960
• Status: Unpublished

Opinion

USCA11 Case: 18-12845 Date Filed: 11/30/2020 Page: 1 of 3

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

Nos. 18-12845, 19-10960 Non-Argument Calendar ________________________

D.C. Docket Nos. 6:18-cv-00316-JA-KRS; 6:08-cr-00176-JA-KRS-1

FRANK L. AMODEO,

Petitioner-Appellant,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

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

(November 30, 2020)

Before WILLIAM PRYOR, Chief Judge, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 18-12845 Date Filed: 11/30/2020 Page: 2 of 3

Frank Amodeo, a federal prisoner, appeals the denial of his motions to

appoint counsel and for relief from the judgment. Amodeo sought the assistance of

counsel to litigate a petition for writ of error coram nobis in which he challenged

an order of forfeiture entered more than eight years earlier in a criminal

proceeding. The district court dismissed Amodeo’s petition as barred by laches and

then denied his related motion to appoint counsel as moot. Later, the district court

ruled that Amodeo failed to present an adequate reason to justify relief from the

judgment. See Fed. R. Civ. P. 60(b). Amodeo has abandoned any challenge that he

could have made to the dismissal of his petition by raising in his initial brief only

arguments about the denial of appointed counsel. See Sapuppo v. Allstate Floridian

Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). We affirm.

We review the denial of appointed counsel and relief from a judgment for

abuse of discretion. See United States v. Webb, 565 F.3d 789, 793 (11th Cir. 2009)

(counsel); Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1207 (11th Cir. 2014)

(relief from judgment). Under that standard, “we affirm unless we determine that

the district court applied an incorrect legal standard, failed to follow proper

procedures in making the relevant determination, or made findings of fact that are

clearly erroneous.” Lugo, 750 F.3d at 1207. We can affirm for any reason

supported by the record. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.

2008).

2 USCA11 Case: 18-12845 Date Filed: 11/30/2020 Page: 3 of 3

The district court did not abuse its discretion by denying Amodeo’s motions

for appointed counsel and for relief from that judgment. Amodeo had “no

constitutional right to coram nobis counsel,” Toles v. Jones, 888 F.2d 95, 99 (11th

Cir. 1989), nor did “the interests of justice or due process” require the district court

to appoint him counsel, Schultz v. Wainwright, 701 F.2d 900, 901 (11th Cir. 1983);

18 U.S.C. § 3006A(a)(1). The Rules of Civil Procedure provide only for the

appointment of a legal guardian, which Amodeo has already. See Fed. R. Civ. P.

17(c). Amodeo also was not entitled to the appointment of counsel by statute

because he did not “seek[] relief under section 2241, 2254, or 2255 of title 28.” 18

U.S.C. § 3006A(a)(2). It would have been futile to appoint counsel to pursue a

petition that Amodeo does not dispute is barred by laches. And Amodeo identified

no extraordinary circumstance that merited relief from an order denying him

appointed counsel more than eight months earlier. See Lugo, 750 F.3d at 1210; see

also Fed. R. Civ. P. 60(c)(1) (requiring a Rule 60 motion be “made within a

reasonable time”).

We AFFIRM the denial of Amodeo’s motions for counsel and for

postjudgment relief.