United States v. Mitchell

No. 98-11084
- 1 -
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11084
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THERIA LEON MITCHELL, JR.,
Defendant-Appellant.
---------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CR-101-1-H
---------------------
May 19, 2000
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Richard L. Howard, IV, counsel for Theria Leon Mitchell,
Jr., has filed his second supplemental brief in support of his
motion to withdraw as appellate counsel, purportedly pursuant to
Anders v. California, 386 U.S. 738 (1967). This court has twice
denied Howard’s motion to withdraw on the ground that his
Anders briefs have been inadequate.
It has come to our attention that Howard is retained counsel
for Mitchell, rather than a court-appointed attorney, a fact that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 98-11084
- 2 -
Howard neglected to mention in his appellate briefs. Howard is
apparently unaware that a retained attorney is not required to
comply with Anders in order to withdraw.2 See Anders, 386 U.S.
at 739-45; Breen v. Beto, 421 F.2d 945, 948 n.1 (5th Cir. 1970).
Insofar as Howard seeks to withdraw from representation of
Mitchell, his motion is GRANTED.
Mitchell has filed a pro se supplemental brief in response
to this court’s invitation to respond to the second supplemental
Anders brief solicited from counsel. Mitchell devotes his brief
to a contention regarding his sentence enhancement for
obstruction of justice under U.S.S.G. § 3C1.1, which he received
on the ground that he had filed a false death certificate.
Mitchell waived his right to appeal his sentence as part of
his plea agreement, and he acknowledged at his rearraignment
proceeding that he had done so. See United States v. Melancon,
972 F.2d 566, 567 (5th Cir. 1992) (right to appeal criminal
sentence is statutory rather than constitutional and may be
waived). He does not now question the validity of the waiver
provision.
At any rate, Mitchell’s assertion that he faked his death
only because he had been “shot at on several occasions” and had
2
Both retained and appointed counsel have an ethical
obligation to refuse to prosecute a frivolous appeal. McCoy v.
Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436-38
(1988). “When retained counsel concludes that an appeal would be
frivolous, he or she has a duty to advise the client that it
would be a waste of money to prosecute the appeal and that it
would be unethical for the lawyer to go forward with it. When
appointed counsel comes to the same conclusion, the same duty to
withdraw arises. Appointed counsel, however, is presented
with a dilemma because withdrawal is not possible without leave
of court [under Anders]. . . .” Id. at 437.
No. 98-11084
- 3 -
had no knowledge that the FBI was looking for him is raised for
the first time on appeal and is thus not reviewable by this
court.
MOTION TO WITHDRAW GRANTED; APPEAL DISMISSED.