Anders Briefs by wanghonghx


									    Anders Briefs
Other Issues for Appeal

  Alan DuBois, Senior Appellate Attorney
          Federal Public Defender for the
         Eastern District of North Carolina

    Brett Sweitzer, Appellate Attorney
     Federal Community Defender Office for the
          Eastern District of Pennsylvania
After you’ve lost . . .
                . . . must you appeal?
• Need to consult with client
• If unable to, or whenever client requests it,
  you must file a notice of appeal
• Even if:
  – there are no issues (Roe v. Flores-Ortega,
    528 U.S. 470 (2000))
  – there is an appeal waiver (U.S. v. Gomez-
    Perez, 215 F.3d 315 (2d Cir. 2000))
  So what if there are no issues?
                        The Anders Procedure

• Brief to Court and client showing you have:
    – Examined record
    – Identified issues of “arguable” merit; and
    – Shown why these issues are nonetheless frivolous

• Request to withdraw

• Court gives client a chance to supplement, then conducts
  independent review of record

• Court affirms, or identifies non-frivolous issue(s) and appoints new
    When are there no issues?
          Losers v. Frivolous Claims

• Many “losers” can and should be raised
  when winners or marginal issues can’t be
• Anders should be filed only when potential
  issues are “wholly frivolous”
• Fifth Circuit checklist
                Frivolous Claims

• “Frivolous” = “non-arguable”
• But what is “non-arguable?”
  –   Contrary circuit precedent? SCOTUS precedent?
  –   Unpreserved issues?
  –   Patently harmless error?
  –   Within-range Guidelines sentences? Below range?
       • U.S. v. Ballion, 466 F.3d 574 (7th Cir. 2006)
       • U.S. v. Whitley, 501 F.3d 74 (2d Cir. 2007)
  – Almendarez-Torres?
       • U.S. v. Pineda-Arrellano (5th Cir. 2007)
              Not so fast!
• Bailey v. U.S., 516 U.S. 137 (1995)
  – “use” of firearm under §924(c)
• Apprendi v. N.J., 530 U.S. 466 (2000)
  – drug quantity thresholds elements of offense
• Crawford v. Washington, 541 U.S. 36
  – hearsay exception not end-run around
    Confrontation Clause
       Being a Fortune-Teller:
 Bousley v. U.S., 523 U.S. 614 (1998)

• Failure to preserve pre-Bailey “use” claim
  defaults claim in habeas

• Must preserve (seemingly) hopeless
  issues on appeal

• Is this crazy, or a “get-out-of-Anders free”
       Anders in the States
• Anders procedure is NOT constitutionally
  – Smith v. Robbins, 120 S. Ct. 746 (2000)

• One method among several

• State procedures vary by jurisdiction
    Anders is not (necessarily)
          a dirty word
• Is it ever preferable to file an Anders brief?
  – Client gets opportunity to argue his
    (frivolous?) issues
  – Independent court review

• ANOTHER OPTION: Self-Representation
  – Proceeding pro se may be preferable for
    some clients
            Issue Selection
           and Cert Petitions

• Mixing winners or arguable claims with
  client-driven losers
  – Chances of success vs. client satisfaction

• Don’t forget to listen to clients. . .
                . . . sometimes, they’re right!

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