United States v. Herbert Hill, Jr. ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2626
UNITED STATES OF AMERICA
v.
HERBERT R. HILL, Jr.,
Appellant.
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-95-cr-00412-001)
District Judge: Hon. William H. Yohn
Submitted under Third Circuit LAR 34.1(a)
on July 13, 2010
Before: FUENTES, ALDISERT and ROTH, Circuit Judges
(Opinion filed: July 20, 2010)
OPINION
ROTH, Circuit Judge:
Herbert Hill appeals the revocation of his supervised release. His counsel, after
filing this appeal, moved to withdraw pursuant to Anders v. California, 386 U.S. 738(1967). We will grant counsel’s motion to withdraw and affirm.1
Hill faced revocation of his supervised release for failing two breathalyzer tests.
After a hearing, the District Court concluded that Hill had been drinking beer, not using
Scope, as Hill claimed, on the day of the breathalyzer test and had thereby violated both
the policy of his residential reentry program and the terms of his supervised release.
Because the court determined that Hill had lied about using Scope, it sentenced Hill to 14
months’ imprisonment, the upper end of the Sentencing Guidelines range.
Hill appealed, and his counsel filed an Anders brief. Hill then filed a pro se brief
in support of his appeal, and the government has also filed a brief supporting counsel’s
Anders motion.
Our inquiry into the merits of counsel’s motion to withdraw focuses on two
questions. First, did counsel adequately fulfill the requirements of the Third Circuit Local
Appellate Rule 109.2(a)? United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001).
Second, does “an independent review of the record present[] any nonfrivolous issues”?
Id.Third Circuit Local Appellate Rule 109.2(a) provides that, “[w]here, upon review
of the district court record, trial counsel is persuaded that the appeal presents no issue of
even arguable merit, trial counsel may file a motion to withdraw and supporting brief.”
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The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
2
To fulfill this rule’s requirements, counsel must satisfy the Court that he “has thoroughly
examined the record in search of appealable issues” and must “explain why the issues are
frivolous.” Youla, 241 F.3d at 300. Counsel’s brief “need not raise and reject every
possible claim,” but “must meet the ‘conscientious examination’ standard set forth in
Anders.” Id.From our review, we conclude that counsel conscientiously examined the record
and explained why Hill’s possible claims lacked even arguable merit. In addition, we
have reviewed Hill’s pro se claims. Hill raised several issues concerning the District
Court’s credibility findings: (1) the court erred in determining that the breathalyzer
machine was reliable, (2) the court failed to balance all the evidence at the hearing, (3) the
court failed to examine whether Hill’s confession to the probation officer was coerced,
and (4) the court erroneously credited the probation officer’s testimony without
considering his racial prejudice against Hill. Hill’s first three claims are without arguable
merit. The racial prejudice allegation is also without arguable merit, as it was
contradicted by Hill’s testimony that the probation officer had treated him fairly and
“helped him quite a bit.”
Our independent review also leads us to conclude that there is no arguable merit to
Hill’s other claims of ineffective assistance of counsel, cruel and inhuman treatment, and
improper sentencing. Ineffective assistance claims, furthermore, are preferably brought
in a collateral review under 28 U.S.C. § 2255, not in a direct appeal. Massaro v. United
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States, 538 U.S. 500, 504 (2003); United States v. Thornton, 327 F.3d 268, 271-72 (3d
Cir. 2003).
For the above stated reasons, we conclude that counsel conscientiously examined
the record and explained why Hill’s appeal is frivolous. Our independent review of the
record likewise leads us to conclude that Hill’s claims are without merit. Accordingly,
we will grant counsel’s motion to withdraw and affirm the judgment of the District Court.
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