Kinte Graves v. Richard Kirkland


FILED OPINION (SUSAN P. GRABER, CARLOS T. BEA and ANDREW D. HURWITZ) 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. Judge: ADH Authoring. FILED AND ENTERED JUDGMENT. [8793789]

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Case: 10-17203 09/24/2013 ID: 8793789 DktEntry: 65-1 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT KINTE M. GRAVES, Petitioner-Appellant, No. 10-17203 v. D.C. No. 2:05-cv-01349GEB-KJN SCOTT MCEWEN, Warden; MATTHEW L. CATE, Secretary, California Department of Corrections and Rehabilitation, Respondents-Appellees. OPINION 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). Page: 1 of 11 Case: 10-17203 2 09/24/2013 ID: 8793789 DktEntry: 65-1 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. Page: 2 of 11 Case: 10-17203 09/24/2013 ID: 8793789 GRAVES V. MCEWEN DktEntry: 65-1 Page: 3 of 11 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 Case: 10-17203 4 09/24/2013 ID: 8793789 DktEntry: 65-1 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. Page: 4 of 11 Case: 10-17203 09/24/2013 ID: 8793789 GRAVES V. MCEWEN DktEntry: 65-1 Page: 5 of 11 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. 9136114, 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). Case: 10-17203 6 09/24/2013 ID: 8793789 DktEntry: 65-1 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 Page: 6 of 11 Case: 10-17203 09/24/2013 ID: 8793789 GRAVES V. MCEWEN DktEntry: 65-1 Page: 7 of 11 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 Case: 10-17203 09/24/2013 8 ID: 8793789 DktEntry: 65-1 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). Page: 8 of 11 Case: 10-17203 09/24/2013 ID: 8793789 DktEntry: 65-1 GRAVES V. MCEWEN Page: 9 of 11 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 Case: 10-17203 10 09/24/2013 ID: 8793789 DktEntry: 65-1 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. Page: 10 of 11 Case: 10-17203 09/24/2013 ID: 8793789 GRAVES V. MCEWEN DktEntry: 65-1 Page: 11 of 11 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.

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