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- SUPREME COURT OF THE UNITED STATES
- --------
- No. ___
- --------
- ANTHONY S. AUSTIN v. UNITED STATES
- on motion of thomas n. cochran for leave to
- withdraw as counsel for petitioner
- [October 31, 1994]
-
- Per Curiam.
- Anthony Austin pleaded guilty to possession of crack
- cocaine with intent to distribute and was sentenced to
- 151 months imprisonment. On appeal to the Fourth
- Circuit, Thomas Cochran, who had been appointed as
- Austin's counsel pursuant to the Criminal Justice Act of
- 1964, 18 U. S. C. 3006A, submitted a brief in accord-
- ance with Anders v. California, 386 U. S. 738 (1967).
- That brief raised the issue of sentence computation, but
- concluded that no meritorious issues existed for appeal.
- The Fourth Circuit affirmed Austin's conviction and
- sentence. Cochran then informed Austin of the right to
- petition for certiorari. Austin responded with a request
- to file a petition on his behalf. In advance of the
- deadline for filing the petition, Cochran applied to this
- Court for leave to withdraw as counsel. We grant his
- application.
- The Criminal Justice Act directs each District Court,
- with the approval of the judicial council of the Circuit,
- to implement -a plan for furnishing representation for
- any person financially unable to obtain adequate
- representation.- 18 U. S. C. 3006A(a). The Fourth
- Circuit plan contains a provision governing the duration
- of service by appointed counsel. Specifically, it provides:
- -2. Appellate Counsel. Every attorney, including
- retained counsel, who represents a defendant in this
- court shall continue to represent his client after
- termination of the appeal unless relieved of further
- responsibility by the Supreme Court. Where counsel
- has not been relieved:
- -If the judgment of this court is adverse to the
- defendant, counsel shall inform the defendant, in
- writing, of his right to petition the Supreme Court
- for a writ of certiorari. If the defendant, in writing,
- so requests, counsel shall prepare and file a timely
- petition for such a writ and transmit a copy to the
- defendant. Thereafter, unless otherwise instructed
- by the Supreme Court or its clerk, or unless any
- applicable rule, order or plan of the Supreme Court
- shall otherwise provide, counsel shall take whatever
- further steps are necessary to protect the rights of
- the defendant, until the petition is granted or
- denied.- 4th Circuit Rules App. II, Rule V.2.
- Cochran argues that the Rule subjects him to conflicting
- obligations. On the one hand, the Rule imposes a
- mandatory duty to file a petition even if the legal
- arguments are frivolous. On the other hand, this
- Court's Rule 42.2 allows an award of damages or costs
- against him if he were to file a frivolous petition.
- As a matter of pure text, Cochran's interpretation is
- correct. The Fourth Circuit Rule does require the
- actions of appointed counsel to comply with this Court's
- Rules, but only after the filing of a petition for certio-
- rari. The Rule imposes a very clear mandate to file
- petitions at the client's request, evidenced by the
- command -shall prepare and file.- The Fourth Circuit
- keeps plenty of company in mandating representation
- through the certiorari process, even when it may run
- counter to our Rules. Although the Fourth Circuit
- Rule provides a mechanism to seek relief from this
- obligation, Cochran is the first attorney to move for such
- relief, indicating that counsel feel encouraged or
- perhaps bound by these Rules to file petitions that rest
- on frivolous claims. These Circuit Rules may explain, in
- part, the dramatically increased number of petitions for
- certiorari on direct appeal from federal courts of appeals
- filed by persons in forma pauperis.
- Consistent with the Criminal Justice Act, we have
- provided by Rule for the payment of counsel appointed
- by this Court to represent certain indigent defendants.
- See Rule 39.7 (-In a case in which certiorari has been
- granted or jurisdiction has been noted or postponed, this
- Court may appoint counsel to represent a party finan-
- cially unable to afford an attorney to the extent author-
- ized by the Criminal Justice Act of 1964, as amended,
- 18 U. S. C. 3006A-). But nothing in the Criminal
- Justice Act compels counsel to file papers in contraven-
- tion of this Court's Rules against frivolous filings. And
- though indigent defendants pursuing appeals as of right
- have a constitutional right to a brief filed on their
- behalf by an attorney, Anders v. California, 386 U. S.
- 738 (1967), that right does not extend to forums for
- discretionary review. Ross v. Moffitt, 417 U. S. 600,
- 616-617 (1974). Our Rules dealing with the grounds for
- granting certiorari, and penalizing frivolous filings, apply
- equally to petitioners using appointed or retained
- counsel. We believe that the Circuit councils should, if
- necessary, revise their Criminal Justice Plans so that
- they do not create any conflict with our Rules. The plan
- should allow for relieving a lawyer of the duty to file a
- petition for certiorari if the petition would present only
- frivolous claims.
- A few of the Circuits have adopted plans that accom-
- modate this Court's Rules in some fashion. For in-
- stance, the First Circuit only requires appointed counsel
- to continue representation at the Supreme Court level if
- -the person requests it and there are reasonable grounds
- for counsel properly to do so.- 1st Circuit Rule 46.5(c).
- If counsel determines a petition would be frivolous, he
- must inform the First Circuit and request leave to
- withdraw. See also 2d Circuit Rules App. A, Rule III.5.
- The Sixth Circuit takes a different tack, insulating
- counsel from violation of its Rules (though not, of course,
- from violation of our Rules) so long as he proceeds
- according to his best professional judgment, without
- resorting to the approval of the appellate court. Its
- recently amended Rule states: -Court appointed counsel
- is obligated to file a petition for a writ of certiorari in
- the Supreme Court of the United States if the client
- requests that such a review be sought and, in counsel's
- considered judgment, there are grounds for seeking
- Supreme Court review.- 6th Circuit Rule 12(f) (empha-
- sis in original). We do not believe that the Criminal
- Justice Act compels either approach. From an adminis-
- trative point of view, however, we think a plan requiring
- approval of the court of appeals is preferable, because
- attorneys are more likely to avail themselves of this
- avenue for relief if they have the endorsement of the
- court to back up their own judgment.
-