944 F.3d 448
2d Cir.2019Background
- Michael Nunez pled guilty to conspiracy to distribute controlled substances, was sentenced to 150 months, and timely appealed.
- Nunez was represented in the district court by retained counsel Sammy Sanchez, who later sought to withdraw and requested CJA appointment on appeal, stating Nunez could not afford counsel.
- Nunez submitted affidavits showing no income or assets and sought in forma pauperis (IFP) status and CJA counsel for the first time on direct appeal.
- The district court denied IFP status, concluding the appeal would be frivolous under 28 U.S.C. § 1915.
- The Second Circuit reviewed the procedure and granted Nunez’s motions, holding that on direct criminal appeal courts should grant IFP status and appoint CJA counsel based solely on financial eligibility, without a merits determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an appellate court may deny IFP/CJA appointment on a direct criminal appeal based on frivolousness under § 1915 | Nunez: IFP and CJA appointment should be granted if financially eligible; merits should not be considered | District court/Government: § 1915 permits denying IFP if appeal is frivolous | Granted: On direct criminal appeals, IFP status and CJA appointment must be decided solely on financial eligibility; merits not considered |
| Whether the Anders framework must precede any merits determination of a direct criminal appeal | Nunez: Anders/appointed counsel review is required before deeming an appeal frivolous | Opposing view: Court may find appeal frivolous and deny IFP prior to appointing counsel | Held: Anders (and related precedents) requires counsel’s conscientious review before the court may determine an appeal is frivolous; appellate courts may not independently decide merits absent an Anders brief |
Key Cases Cited
- Coppedge v. United States, 369 U.S. 438 (1962) (appellate courts ordinarily lack adequate materials to decide IFP good-faith and must provide counsel/record where substance is unclear)
- Douglas v. California, 372 U.S. 353 (1963) (indigent defendants have right to appointed counsel on direct appeal)
- Anders v. California, 386 U.S. 738 (1967) (framework requiring counsel to file brief identifying any nonfrivolous issues before counsel may seek withdrawal)
- Penson v. Ohio, 488 U.S. 75 (1988) (Anders procedure safeguards right to counsel; merits may be considered only after Anders review)
- Neitzke v. Williams, 490 U.S. 319 (1989) (standard for dismissing frivolous civil IFP appeals)
- United States v. Osuna, 141 F.3d 1412 (10th Cir. 1998) (circuit decision permitting CJA appointment on appeal based on financial eligibility without merits review)
- United States v. Dangdee, 608 F.2d 807 (9th Cir. 1979) (similar rule favoring appointment based on financial eligibility)
- United States v. Durham, 922 F.3d 845 (7th Cir. 2019) (recent circuit authority aligning with approach to grant counsel on appeal based on financial status)