Tommie A. Johnson v. United States , 360 F.2d 844 ( 1966 )

PER CURIAM:

In Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060, (1958), the Supreme Court held that an indigent is entitled to representation by counsel acting as an advocate. In examining the role of appointed counsel the Court stated:

If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may seek to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel’s evaluation of the case, then leave to withdraw may be allowed * ■* *

356 U.S. at 675, 78 S.Ct. at 975; accord, Hardy v. United States, 375 U.S. 277, 281, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964). Pursuant to the Ellis decision, this court has established some further guidelines for appointed counsel who, after making a “conscientious investigation,” concludes a case is frivolous. See Statement to be Handed by the Clerk to Appointed Counsel, dated December 13, 1963. We indicate in that Statement that we “will be greatly aided if, as a general rule, appointed counsel remains in a case.” ¹ We also recognize that counsel may justifiably feel a case to be so lacking in merit that he desires to withdraw on that ground. But if he moves to withdraw, we require that he—

* * * file a supporting memorandum analyzing the case legally, citing record references to the transcript if one is available [²] and also citing any case or cases upon which counsel relied in arriving at his ultimate conclusion.

Statement, supra. The confidential memorandum in support of the motion is not placed in the public files of the case and is to be served upon the appellant but not the appellee, so as not to prejudice appellant’s case in advance of the filing of the brief, if we conclude that the appeal is not frivolous. In effect, the memorandum as described in our 1963 Statement is to be similar to a brief, and its length and detail will, of course, depend upon the nature and complexity of the particular case.

To fulfill our responsibility under the Ellis decision, we must conclude not only that counsel has made a conscientious investigation of the case, but also that we agree with his evaluation of it.³ We cannot reach such a conclusion in the absence of a fully documented memorandum. We therefore deny the present motion to withdraw.

1 . This is especially true in a direct appeal from a criminal conviction.

2 . After the decision in Hardy v. United States, supra, it would be a rare case in which a transcript would not be available.

3 . Counsel should not limit his investigation and evaluation to those points which his client wishes to raise, or has raised in a pro se notice of appeal. See Hardy v. United States, supra, 375 U.S. at 287, 84 S.Ct. at 430 (concurring opinion).