Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding D.C. No. 0-CR-03202-BEN
The opinion of the court was delivered by: Sessions, District Judge:
Submitted October 12, 2011*fn1 Pasadena, California
Before: Edward Leavy and Kim McLane Wardlaw, Circuit Judges, and William K. Sessions III, District Judge.*fn2
Opinion by Judge Sessions
Francisco Beltran Valdez appeals from a February 28, 2011, oral order denying his request for appointment of new counsel and permitting him to proceed pro se. He is charged in a superseding indictment with one count of being a previously deported alien found in the United States, in violation of 8 U.S.C. § 1326(a) and (b), and is currently incarcerated and awaiting trial. We conclude that we lack jurisdiction, and we dismiss the appeal.*fn3
On May 18, 2010, the government charged Beltran Valdez with being a deported alien found in the United States in violation of 8 U.S.C. § 1326. At his initial appearance the magistrate judge appointed counsel. On July 15, 2010, Beltran Valdez requested and was granted appointment of new counsel. On February 28, 2011, on the eve of trial, the district court held a hearing on motions in limine filed by the defense and the government. At that hearing, Beltran Valdez requested appointment of new counsel. The district court denied his request, but conducted a Faretta*fn4 hearing and permitted him to represent himself, with his former attorney remaining as advisory counsel. The trial date was rescheduled. Beltran Valdez, pro se, filed a notice of appeal dated March 23, 2011, which was docketed March 28, 2011.
The government moved to dismiss the appeal for lack of jurisdiction on the grounds that the order was not final, and does not satisfy the requirements of the collateral order doctrine. We denied the motion without prejudice to renewing the arguments in the government's answering brief, and ordered the parties to address whether the collateral order doctrine applies to the district court's order. We also required the parties to address, in the alternative, whether sufficiently exceptional circumstances warrant construing the appeal as a petition for writ of mandamus. We appointed counsel for purposes of this appeal only.
The parties agree that the February 28 order was interlocu-tory. Ordinarily, our jurisdiction is limited to final decisions of the district court. United States v. Romero-Ochoa, 554 F.3d 833, 835 (9th Cir. 2009). The collateral order doctrine, however, permits appellate review of those decisions which are " 'too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.' " Id. at 835-36 (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). In order to qualify for review under Cohen, an order "must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). All three elements must be satisfied. Romero-Ochoa, 554 F.3d at 836.
The Cohen test is strictly applied, particularly in criminal cases, id., where "an interlocutory order is appealable only where it affects a 'right not to be tried.' " United States v. Samueli, 582 F.3d 988, 992 (9th Cir. 2009) (quoting United States v. Austin, 416 F.3d 1016, 1022 (9th Cir. 2005)); cf. Flanagan v. United States, 465 U.S. 259, 264-65 (1984) (discussing the importance of the final judgment rule in criminal cases which "has led the Court to permit departures from the rule 'only when observance of ...