Kinte Graves v. Scott McEwen , 731 F.3d 876 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KINTE M. GRAVES, No. 10-17203
Petitioner-Appellant,
D.C. No.
v. 2:05-cv-01349-
GEB-KJN
SCOTT MCEWEN, Warden;
MATTHEW L. CATE, Secretary,
California Department of OPINION
Corrections and Rehabilitation,
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Senior District Judge, Presiding
Submitted August 13, 2013*
San Francisco, California
Filed September 24, 2013
Before: Susan P. Graber, Carlos T. Bea, and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Hurwitz
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 GRAVES V. MCEWEN
SUMMARY**
Habeas Corpus
The panel affirmed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition and granted a motion
by appointed counsel to withdraw, after holding that counsel
had followed the proper procedure under 9th Cir. R. 4-1(c)(6)
in seeking to withdraw.
The panel explained that Rule 4-1(c)(6) serves an
important purpose, and that 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.
COUNSEL
Kathleen C. Page, Page & Page, Sacramento, California, 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,
California, for Respondents-Appellees.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GRAVES V. MCEWEN 3
OPINION
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 28 U.S.C. § 2254 habeas corpus
petition in the United States District Court for the Eastern
District of California. The district court denied relief, but
issued a certificate of appealability (“COA”) on five issues.
The court then appointed appellate counsel for Graves under
the Criminal Justice Act, 18 U.S.C. §3006A.
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 (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
4 GRAVES V. MCEWEN
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 counsel on grounds no issues
worthy of appeal exist.
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.
GRAVES V. MCEWEN 5
1996). Accordingly, appellants in such proceedings have no
constitutional right “to insist on the Anders procedures.”
Pennsylvania v. Finley, 481 U.S. 551, 557 (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 § 2254 habeas appeal is
permitted or required when appointed counsel uncovers no
colorable issues.
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 F. App’x 650,
650 (9th Cir. 2012); Young v. McGrath, 397 F. App’x 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).1
But, other unpublished dispositions have expressly
disapproved of use of an Anders brief in an appeal from a
district court’s denial of a § 2254 petition. Garduno v. Lewis,
365 F. App’x 820, 821–22 (9th Cir. 2010); Gibbons v.
McDaniel, No. 04-16224, 2006 WL 679985, at *1 n.1 (9th
Cir. Mar. 15, 2006); Golden v. Lewis, No. 97-17246, 1999
WL 993650, at *2 (9th Cir. Nov. 1, 1999). These dispositions
cite Finley for the proposition that the Anders framework is
1
In a pre-Finley opinion, this court accepted an Anders brief in a habeas
appeal without discussion. Myers v. Rhay, 577 F.2d 504, 507 (9th Cir.
1978).
6 GRAVES V. MCEWEN
relevant only when a litigant has a constitutional right to
counsel. Garduno, 365 F. App’x at 821–22; Gibbons, 2006
WL 679985, at *1 n.1; Golden, 1999 WL 993650, at *2. In
several cases, the panel even chastised the appointed attorney
for filing an Anders brief. See, e.g., Garduno, 365 F. App’x
at 821–22 (“We remind counsel that Anders established a
prophylactic framework that is relevant when, and only when,
a litigant has a previously established constitutional right to
counsel. . . . Nevertheless, we have independently reviewed
the record in this case and agree that the claims on which we
granted a COA lack merit.”) (internal citations and quotation
marks omitted); Gibbons, 2006 WL 679985, at *1 n.1 (“We
reject Gibbons’s counsel’s attempt to characterize his brief as
an Anders brief. . . . Despite the deficiencies in the opening
brief, we reach the merits of this appeal because the certified
issue has been addressed in both the answering and reply
briefs.”); Golden, 1999 WL 993650, at *2 (“[W]e reject
Golden’s Ninth-Circuit-appointed counsel’s attempt to label
her brief an Anders brief.”).
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 F. App’x 907, 907 (11th Cir. 2007); Harris v. Hurley,
110 F. App’x 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 F. App’x
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
GRAVES V. MCEWEN 7
that under Finley, counsel is not required to comply with the
Anders procedure in the § 2254 context).
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 18 U.S.C. § 3006A.” 9th Cir.
R. 4-1. Section 3006A, in turn, provides for appointment of
counsel when a petitioner “is seeking relief under section . . .
2254.” 18 U.S.C. § 3006A(a)(2)(B). Habeas appeals are
therefore squarely covered by Rule 4-1.2
2
As enacted in 1964, § 3006A dealt only with direct appeals. Pub. L.
No. 88-455, 78 Stat. 552 (1964). Congress expanded the law in 1986 to
cover habeas appeals. Pub. L. No. 99-651, 100 Stat. 3642 (1986). Thus,
when this court adopted Rule 4-1 in 1995, we intended to include habeas
appeals, although habeas is not a civil remedy (Federal Habeas Manual
8 GRAVES V. MCEWEN
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 (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.
§ 1:106).
GRAVES V. MCEWEN 9
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 28 U.S.C. § 2253(c)(2), a COA may issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” Thus, habeas appeals involving
appointed counsel start from the premise that at least one
Article III judge has determined that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted).
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
10 GRAVES V. MCEWEN
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
§ 2254 habeas appeal, absent further action by this court,
appellate review is limited to those issues for which a COA
has been granted. 9th Cir. R. 22-1(e).3 Thus, it should
normally be necessary for habeas appellate counsel (and
ultimately the court) to consider only certified issues when
evaluating an Anders brief. But this minor distinction does
not make Rule 4-1(c)(6) inapplicable to habeas appeals, nor
does it diminish the utility of the Anders procedure in this
context.
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
3
“Petitioners shall brief only issues certified by the district court or the
court of appeals.” 9th Cir. R. 22-1(e). If a petitioner briefs an uncertified
issue, that argument “will be construed as a motion to expand the COA
and will be addressed by the merits panel to such extent as it deems
appropriate.” Id.
GRAVES V. MCEWEN 11
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.
4
The Anders brief discusses two uncertified issues. The brief correctly
concedes that Graves did not raise the first issue below. As to the second
issue, the brief accurately notes that trial counsel did not properly object,
direct appellate counsel did not raise the issue, and Graves did not raise it
in his petition.