United States v. Hawkins, Robert A. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. HAWKINS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 04 CR 50028—Philip G. Reinhard, Judge.
____________
ON MOTION TO WITHDRAW AS COUNSEL
AND APPOINTMENT OF NEW COUNSEL
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OCTOBER 26, 2007Œ
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RIPPLE, Circuit Judge (in chambers). This matter is
before me on the motion of appointed counsel to with-
draw and on the motion of Mr. Hawkins for the appoint-
ment of new counsel. This court decided the merits of this
direct criminal appeal in United States v. Hawkins, 499
Œ
This opinion was released initially in typescript form.
2 No. 06-2094
F.3d 703 (7th Cir. 2007). The deadline for the defendant
to file a petition for a panel or en banc rehearing was
September 11, 2007. Fed. R. App. P. 35(c), 40(a)(1). On that
day, Mr. Hawkins’ appointed counsel instead filed a
motion to withdraw as counsel and requested a thirty-day
extension so that Mr. Hawkins could prepare and file a
petition for rehearing on his own behalf. Mr. Hawkins
then filed a motion asking for the appointment of new
counsel. For the reasons set forth in this opinion, I grant
the motion to withdraw and grant the motion for the
appointment of counsel.
I
BACKGROUND
After a jury found Mr. Hawkins guilty of robbery
affecting interstate commerce, 18 U.S.C. § 1951(a), of
using a firearm in relation to a crime of violence, id.§ 924(c)(1)(A), and of unlawful possession of a firearm by
a felon, id. § 922(g)(1), he was sentenced to 324 months’
imprisonment. Mr. Hawkins appealed and argued that
the district court violated his right to due process of law
by permitting testimony about a “showup” identification
conducted shortly after his arrest. This court affirmed the
convictions. We held that the identification technique
employed during the investigation was not unduly sug-
gestive and that, in any event, the identification was
reliable.
II
DISCUSSION
As appointed counsel recognizes, the duties of appointed
counsel in a direct criminal appeal do not end when this
No. 06-2094 3
court renders an adverse decision. Counsel still has the
obligation to consider whether to file post-opinion plead-
ings in the court of appeals and a petition for a writ of
certiorari in the Supreme Court of the United States. Unless
it would be frivolous to do so, counsel must prepare
and file such pleadings. Seventh Circuit Criminal Justice
Act Plan, § V.3; United States v. Price, 491 F.3d 613, 615 (7th
Cir. 2007) (Ripple, J., in chambers); United States v. Howell,
37 F.3d 1207, 1209-10 (7th Cir. 1994) (Ripple, J., in cham-
bers).
Mr. Hawkins’ appointed counsel states that she has
notified Mr. Hawkins of his right to file a petition for
rehearing in this court and for certiorari before the Su-
preme Court and that Mr. Hawkins insists that the peti-
tions be filed. However, counsel states that in her profes-
sional judgment, there is no reasonable basis for filing
either petition. As she notes, this case was decided pri-
marily on factual rather than legal grounds, the opinion
was without dissent and it identifies no split of authority
that would tend to suggest that rehearing or Supreme
Court review are warranted.
In this ruling, I shall limit my remarks to the situa-
tion currently facing Mr. Hawkins—the filing of a petition
for rehearing in this court. Until that step in the process
is completed, it would be premature to address the filing
of a petition for a writ of certiorari.
Appointed counsel is under no obligation to file a
petition for rehearing in every case. United States v. Coney,
120 F.3d 26 (3d Cir. 1997). Appointed counsel is correct
in stating that such a decision must be left to the sound
discretion of appointed counsel. Indeed, as appointed
counsel’s motion intimates, there may well be times when
the filing of such a petition would be frivolous and,
4 No. 06-2094
therefore, in violation of counsel’s obligation to the court.
Id. at 27. In this case, however, given the nature of the
claim raised on appeal and the conclusory nature of ap-
pointed counsel’s submission, I cannot accept, at this
point, counsel’s submission that a petition for rehearing
would necessarily be frivolous in this case. The motion to
withdraw states in conclusory fashion that there was
no dissent from the panel’s holding, that the case was
decided on largely factual, as opposed to legal, grounds,
and that the opinion identifies no split in authority.
Counsel is correct that the fairness of a showup identifica-
tion is necessarily a fact-based inquiry, but factual dis-
tinctions in such cases are very important in assessing
whether the procedure was a fair one. The papers before
me demonstrate no effort on the part of counsel to come to
grips with existing case law or with the panel’s analysis.
Neither do they demonstrate why a petition for rehear-
ing necessarily would be frivolous. Cf. Anders v. California,
386 U.S. 738 (1967); United States v. Schuh, 289 F.3d 968, 973-
74 (7th Cir. 2002).
Under these circumstances, the ends of justice will be
best served by granting appointed counsel’s motion to
withdraw and by appointing another counsel to evaluate
the case and consult with Mr. Hawkins. If replacement
counsel agrees with the view of present counsel, replace-
ment counsel may file, with notice to Mr. Hawkins, a
motion to withdraw, and Mr. Hawkins may file, if he
wishes, a response to counsel’s motion. See Cir. R. 51(b).
This action is compatible with the court’s practice in
similar circumstances, see Howell, 37 F.3d at 1210. I em-
phasize that I do not mean to discredit, in any way, the
professional judgment or standards of current appointed
counsel. Rather, I simply believe that, given the nature
No. 06-2094 5
of the issue on appeal in this case, a more specific show-
ing of the frivolousness of any petition for rehearing is
necessary before the court can leave a criminal defendant
without counsel at this stage of the proceedings. Since
counsel has formed an opinion about the merits of the
case, Mr. Hawkins’ right to counsel can be better pro-
tected by the appointment of another counsel.
I also emphasize that my ruling today is limited to
the petition for rehearing stage of the proceedings. It
would be premature to address the petition for a writ of
certiorari stage at this point.
Accordingly, the motion of appointed counsel to with-
draw is granted. The motion of the defendant for new
counsel is granted. Newly appointed counsel shall have
30 days from the date of appointment to file either a
petition for rehearing or a motion to withdraw on the
ground that any petition would be frivolous.
IT IS SO ORDERED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-2-07