Kinte M. GRAVES, Petitioner-Appellant, v. Scott McEWEN, Warden; Matthew L. Cate, Secretary, California Department of Corrections and Rehabilitation, Respondents-Appellees.
No. 10-17203
United States Court of Appeals, Ninth Circuit
Submitted Aug. 13, 2013. Filed Sept. 24, 2013.
727 F.3d 876
Before: SUSAN P. GRABER, CARLOS T. BEA, and ANDREW D. HURWITZ, Circuit Judges. Opinion by HURWITZ, Circuit Judge.
* The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
We must therefore dismiss this appeal for lack of jurisdiction. Nevertheless, we construe appellant‘s letter and motion for appointment of counsel, dated June 25, 2013 and received in this court on July 5, 2013, to be a notice of appeal from the final judgment. See Estrada v. Scribner, 512 F.3d 1227, 1236 (9th Cir.2008) (pro se prisoner‘s motion for appellate counsel satisfied requirements for notice of appeal where motion identified party seeking to appeal, and referenced judgment and district court‘s issuance of certificate of appealability).
The Clerk shall transmit appellant‘s July 5, 2013 letter and motion to the district court for filing as a notice of appeal and request for a certificate of appealability from the final judgment entered on May 28, 2013.
All pending motions are denied as moot.
DISMISSED.
Kathleen C. Page, Page & Page, Sacramento, CA, for Petitioner-Appellant.
Kamala D. Harris, Attorney General of California, Michael P. Farrell, Senior Assistant Attorney General, Brian G. Smiley, Supervising Deputy Attorney General, David Andrew Eldridge, Deputy Attorney General, Sacramento, CA, for Respondents-Appellees.
HURWITZ, Circuit Judge:
The central question in this case is what procedure appointed counsel in a habeas appeal should follow when seeking to withdraw. Ninth Circuit Rule 4-1(c)(6) provides the answer.
I.
In 2003, Kinte Graves was convicted in California state court of various felonies. The convictions were affirmed on direct appeal and the California Supreme Court denied a petition for review. The superior court denied Graves’ state habeas corpus petition. Graves did not seek habeas review in either the California Court of Appeal or the California Supreme Court.
Graves then filed a
Counsel subsequently filed an opening brief in this court in the style required by Anders v. California for direct criminal appeals in which appellate counsel can find no viable issues. 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Citing to applicable law and the record, the opening brief explained why none of the five issues certified by the district court warranted habeas relief and requested permission to withdraw. In response, Graves filed a pro se “Declaration of Conflict,” requesting that we strike the Anders brief and substitute counsel. We denied that request, but gave Graves leave to file a pro se supplemental brief. He failed to do so.
In their answering brief, the State appellants argue that appointed counsel may not file an Anders brief in a habeas appeal. Because the issue of how appointed counsel in habeas appeals should seek to withdraw in such circumstances is recurrent, we today clarify that use of the Anders procedure is required under our Circuit Rules, as a condition to withdrawal of
II.
In Anders, the Supreme Court specified how appointed criminal counsel should proceed when determining, “after a conscientious examination,” that a client‘s appeal is “wholly frivolous.” 386 U.S. at 744. In that circumstance, the Court concluded, counsel “should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal.” Id. The required brief has come to be known as an Anders brief.
The Anders brief is designed to safeguard a defendant‘s Sixth Amendment right to direct appellate counsel. Id. at 745 (“This procedure will assure penniless defendants the same rights and opportunities on appeal—as nearly as is practicable—as are enjoyed by those persons who are in a similar situation but who are able to afford the retention of private counsel.“). There is no general constitutional right to counsel, however, in collateral postconviction review proceedings. Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.1996). Accordingly, appellants in such proceedings have no constitutional right “to insist on the Anders procedures.” Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). But, neither the Supreme Court nor any published Ninth Circuit opinion has considered whether, although not constitutionally required, filing an Anders brief in a
This court has taken an inconsistent approach to the issue, entirely through memorandum dispositions. After Finley, a number of unpublished decisions have accepted Anders briefs in habeas appeals, albeit without discussing the issue the State raises here. See, e.g., Valle v. Hedgpeth, 471 Fed.Appx. 650, 650 (9th Cir. 2012); Young v. McGrath, 397 Fed.Appx. 397, 398 (9th Cir.2010); Mauldin v. White, No. 96-55559, 1999 WL 1211478, at *1 (9th Cir. Dec. 16, 1999); Foust v. Calderon, No. 92-55313, 1994 WL 5750, at *1 (9th Cir. Jan. 7, 1994); Miles v. Vasquez, No. 91-16355, 1993 WL 321713, at *1 (9th Cir. Aug. 24, 1993); Allen v. Oregon, No. 91-36114, 1992 WL 209544, at *1 (9th Cir. Aug. 31, 1992).
But, other unpublished dispositions have expressly disapproved of use of an Anders brief in an appeal from a district court‘s denial of a
The case law elsewhere is similarly divided. Several of our sister circuits appear to have permitted submission of an Anders brief in a habeas appeal, albeit largely without analysis. See, e.g., Boyle v. McKune, 544 F.3d 1132, 1140 (10th Cir.2008); Boney v. Sec‘y for the Dep‘t of Corrs., 218 Fed.Appx. 907, 907 (11th Cir. 2007); Harris v. Hurley, 110 Fed.Appx. 597, 599 (6th Cir.2004). The Third Circuit has also accepted an Anders brief in a habeas appeal, but commented that because “[a]ppointment of counsel in a habeas proceeding is not constitutionally mandated ... a motion to withdraw comporting with the requirements of Anders is not necessary.” Turner v. Dragovich, 163 Fed.Appx. 97, 99 (3d Cir.2006); see also Merchel v. Page, No. 99-2155, 2000 WL 52893, at *1 (7th Cir. Jan. 21, 2000) (also finding that under Finley, counsel is not required to comply with the Anders procedure in the
A Second Circuit opinion stated that the Anders procedure is not applicable in habeas cases. Love v. McCray, 413 F.3d 192, 194 & n. 1 (2d Cir.2005). But see Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (accepting an Anders brief without discussion). In contrast, the Fifth Circuit has stated that although counsel served “by a discretionary appointment of the court rather than because of a declared constitutional right, it is permitted to apply the principles enunciated in Anders to determine whether counsel should be allowed to withdraw.” Dinkins v. Alabama, 526 F.2d 1268, 1269 (5th Cir.1976).
III.
Although our prior cases and those elsewhere provide mixed guidance on whether an Anders brief is permitted or required in the circumstances of this case, Ninth Circuit Rule 4-1 directly addresses the issue. That Rule, which is not discussed in our prior dispositions, is entitled “Counsel in Criminal Appeals,” and expressly applies “to appeals in categories of cases listed in
Rule 4-1(c)(6) specifically deals with withdrawal of counsel “appointed under the Criminal Justice Act,” and provides that:
(6) [I]f after conscientious review of the record appointed counsel believes the appeal is frivolous, on or before the due date for the opening brief, appointed counsel shall file a separate motion to withdraw and an opening brief that identifies anything in the record that might arguably support the appeal, with citations to the record and applicable legal
authority. The motion and brief shall be accompanied by proof of service on defendant. See Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967), and United States v. Griffy, 895 F.2d 561 (9th Cir.1990). The cover of the opening brief shall state that the brief is being filed pursuant to Anders v. California. The filing of a motion to withdraw as counsel along with a proposed Anders brief serves to vacate the previously established briefing schedule. To facilitate this Court‘s independent review of the district court proceedings, counsel shall designate all appropriate reporter‘s transcripts, including but not limited to complete transcripts for the plea hearing and sentencing hearing, and shall include the transcripts in the excerpts of record. Counsel are advised to consult Circuit Rule 30-1.
When an appointed attorney has properly moved for leave to withdraw pursuant to Anders and has included all appropriate reporter‘s transcripts, this Court will establish a briefing schedule permitting the defendant to file a pro se supplemental opening brief raising any issues that defendant wishes to present. The order will also direct appellee by a date certain either to file its answering brief or notify the Court by letter that no answering brief will be filed.
Thus, although filing an Anders brief is not constitutionally mandated in a habeas appeal when appointed counsel seeks to withdraw, our Rules expressly contemplate such a procedure. Rule 4-1(c)(6) serves an important purpose. Counsel in habeas cases are typically appointed, as here, only after the district court or this court grants a COA. Under
To be sure, a COA, often issued by a district judge or a panel of this court without the benefit of briefing, is not preclusive on the presence of non-frivolous appellate issues. But the issuance of a COA does suggest the usefulness of an Anders brief, which must parse the potential issues certified for appeal and describe why they do not justify relief. When at least one judge has found the possibility of substance in the appeal, counsel should not be allowed to abandon the appointment without carefully explaining why.
The Anders filing in a habeas appeal, and the court‘s review, will not precisely parallel that in a direct appeal. In the latter context, an attorney may file an Anders brief only when, after reviewing the entire record, he finds an appeal “wholly frivolous.” Anders, 386 U.S. at 744. The appellate court must then independently review the entire record to assure itself that this exacting standard is met. Id. But in a
IV.
Having determined that Graves’ appointed counsel followed the proper procedure under Rule 4-1(c)(6), we turn to the merits in this case. Our review of the briefing and the record discloses that the certified issues provide no basis for appellate relief, and we decline to expand the COA to cover the uncertified issues identified in the Anders brief.4
V.
Accordingly, we AFFIRM the district court‘s judgment and GRANT the motion of Kathleen C. Page to withdraw as counsel of record for Graves.
MOTION GRANTED, JUDGMENT AFFIRMED.