United States v. Marcus Durham

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3283
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCUS C. DURHAM,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois
No. 96-cr-40051-SMY – Staci M. Yandle, Judge.
____________________
DECIDED MAY 2, 2019
____________________
WOOD, Chief Judge, in chambers. Marcus Durham is seek-
ing to appeal from the district court’s order revoking his su-
pervised release and imposing a sentence of an additional 30
months in prison. Durham’s supervised release relates to his
conviction for conspiring to distribute and possessing with in-
tent to distribute cocaine and cocaine base. For purposes of
the proceedings in the district court, a magistrate judge had
found that Durham was “financially unable to retain
2 No. 18-3283
counsel,” as required by 18 U.S.C. § 3006A(b). Initially,
Durham was represented by a court-appointed lawyer, but
before the revocation hearing, that lawyer withdrew with the
court’s permission. Durham was represented by retained
counsel at the hearing. After the hearing, the court allowed
retained counsel to withdraw. Durham then filed a motion pro
se to proceed in forma pauperis (IFP) on appeal—a request he
needed to make, because during the time he was able to en-
gage retained counsel he was presumably also able to pay. His
IFP status thus lapsed when appointed counsel left the case,
see FED. R. APP. P. 24(A)(3). In support of his new motion, he
cited his renewed inability “to retain counsel and pay for the
costs attendant to the proceedings.”
The court denied Durham’s pro se motion, finding that he
had provided an incomplete financial affidavit. It singled out
his failure “to attach a certified statement showing all receipts,
expenditures, and balance during the last six months for his
institutional accounts.” The record currently before me does
not reveal for how much of that six-month period Durham
had been incarcerated, given that he had been on supervised
release, but that detail does not matter for present purposes.
Shortly after the district court issued that order, this court
appointed the Federal Defender’s Office for the Central Dis-
trict of Illinois for the limited purpose of re-filing in the dis-
trict court a proper motion to proceed IFP on appeal. An at-
torney from that office did so, but to no avail. In response to
counsel’s motion, the district court again denied IFP status. In
so doing, it cited 28 U.S.C. § 1915(a)(1) and Federal Rule of
Appellate Procedure 24(a)(1). Applying the standards set out
in those sources, the court determined that Durham had $750
in his prison account and thus could not show that he was
No. 18-3283 3
“unable to pay the costs of commencing his appeal.” (The fil-
ing fee for an appeal is currently $505.) In addition, citing 28
U.S.C. § 1915(a)(3), the court ruled that Durham’s appeal was
frivolous, because he had “not articulated any argument to
suggest that the court revoked his supervised release in er-
ror.” Counsel has now renewed her motion in this court; she
again argues that Durham does not have the financial ability
to hire an attorney.
The problem with the district court’s disposition of
Durham’s two motions relates to the applicable standard.
Durham is not trying to bring a civil appeal, which would be
governed by the general IFP statute, 28 U.S.C. § 1915. Instead,
he is seeking to proceed under the Criminal Justice Act, 18
U.S.C. § 3006A, which provides as follows in pertinent part:
Representation shall be provided for any finan-
cially eligible person who—
… (E) is charged with a violation of supervised re-
lease or faces modification, reduction, or enlargement
of a condition, or extension or revocation of a term of
supervised release.
Id. § 3006A(a)(1)(E). Moreover, the Criminal Justice Act spec-
ifies that there must be a plan for “furnishing representation
for any person financially unable to obtain adequate representa-
tion.” Id. § 3006A(a) (emphasis added). These are different
standards from the ones that apply to all litigants who seek
the right to proceed without prepayment of costs and fees, and
who do not as a rule have a right to appointed counsel. The
general run of litigants have only the opportunity to ask the
court to attempt to recruit counsel for them. See Pruitt v. Mote,
503 F.3d 647 (7th Cir. 2007) (en banc).
4 No. 18-3283
In Criminal Justice Act cases, just as in civil cases, the party
seeking the right to proceed IFP must first file a motion with
the district court. Durham did so, twice. If the district court
denies that motion, the person may renew his request in this
court. See FED. R. APP. P. 24(a)(4), (5). In cases governed only
by section 1915, the district court is required to screen the case
before granting the privilege to proceed without prepayment
of fees. See 28 U.S.C. § 1915(e)(2). If it concludes (among other
things) that the action or appeal is frivolous or malicious, the
court must dismiss the case. Id. § 1915(e)(2)(B)(i).
That language is conspicuously missing from the Criminal
Justice Act. And it is easy to see why. In most of the instances
covered by that Act, the right to counsel flows from the Sixth
Amendment to the Constitution. I recognize that proceedings
involving the revocation of supervised release do not as a rule
fall within the Sixth Amendment’s protection, see Gagnon v.
Scarpelli, 411 U.S. 778, 790 (1973), but there is no need to worry
about the Constitution when the statute gives such a clear
right to counsel. Sensitive to the balance between the duty of
counsel to refrain from pursuing frivolous appeals and the
rights of the defendant, the Supreme Court has dictated a dif-
ferent approach to that problem. In Anders v. California, 386
U.S. 738 (1967), the Court ruled that an attorney who found a
case to be wholly frivolous should so advise the court and
seek permission to withdraw. Id. at 744. But—and this is a big
qualification—counsel must “accompany[y] [that request] by
a brief referring to anything in the record that might arguably
support an appeal.” Id. The indigent client must receive a
copy of that brief and be given the chance to raise with the
court any points he chooses. Id. Even though we are not com-
pelled to do so for revocations of supervised release, given
Scarpelli, as a matter of discretion this court follows the Anders
No. 18-3283 5
procedures for those proceedings, since the Anders system has
proven to be an effective way to weed out hopeless appeals.
See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016).
As I noted earlier, the Criminal Justice Act asks only if the
defendant is “financially unable” to obtain adequate repre-
sentation; that standard applies to revocations of supervised
release. See United States v. Martin-Trigona, 684 F.2d 485, 489–
90 (1982); United States v. Kelly, 467 F.2d 262, 266 (7th Cir.
1972). The Act addresses criminal actions and appeals specif-
ically, and thus its terms control over the more general ones
found in section 1915. The Ninth and Tenth Circuits share this
view of the two statutes. United States v. Dangdee, 608 F.2d 807(9th Cir. 1979); United States v. Osuna, 141 F.3d 1412 (10th Cir.
1998). Although the Fifth Circuit has taken the opposite posi-
tion, see United States v. Boutwell, 896 F.2d 884 (5th Cir. 1990),
it is notable that Boutwell was concerned about giving rights
to indigent defendants that more affluent defendants did not
have. Should this court face such a problem in the future, I am
certain that we would address it. But in the typical case of an
indigent criminal defendant, it is not likely to arise. People
who have no need to invoke section 1915 will not face dismis-
sal under section 1915(e); those who are indigent enough to
qualify under section 1915(a) will likely also be financially un-
able to pay for a lawyer for purposes of the Criminal Justice
Act.
For now, the law in this circuit is well established. The
Criminal Justice Act directs that counsel be appointed to rep-
resent a financially eligible person who meets any of the cri-
teria of 18 U.S.C. § 3006A(a)(1). The criterion that applies to
Durham is the revocation of supervised release. Id.
§ 3006A(a)(1)(E). As the Seventh Circuit Criminal Justice Act
6 No. 18-3283
Plan puts it, “In determining the need for appointment of
counsel under the Act, the Courts [within the Seventh Circuit]
shall not be governed by a requirement of indigence on the
part of the defendant, but rather by his financial inability to
employ counsel … .” Seventh Circuit Plan, Part III.3, “Deter-
mination of Need for Appointment of Counsel.” The stand-
ards for IFP eligibility contained in 28 U.S.C. § 1915(a) should
have played no role in resolving Durham’s motion. See gen-
erally 16AA Charles Alan Wright et al., “Standard for Pro-
ceeding In Forma Pauperis,” FEDERAL PRACTICE & PROCEDURE
§ 3970.1 at 144-45 (4th ed. 2008).
In addition, the Criminal Justice Act does not permit dis-
trict courts to appoint counsel only for defendants whose ap-
peals the court deems not to be frivolous or taken in bad faith.
The Anders procedures are available, should counsel come to
that conclusion. As the court put it in Osuna, “[t]he determi-
nation of the frivolousness of a direct criminal appeal is the
responsibility of the court of appeals in its determination on
the merits of the appeal.” 141 F.3d at 1415.
For these reasons, I hereby GRANT Durham’s motion for
leave to proceed in forma pauperis in his appeal from the dis-
trict court’s revocation of his supervised release.