Thursday, April 20, 2006

A Narrow Question of Anders Procedure

United States v. William Eskridge, No. 05-2808 (April 19, 2006): This case occupies an incredibly small piece of the legal landscape, but could lead to some difficulties down the road. Mr. Eskridge appealed revocation of his supervised release, arguing that the prison sentence imposed upon the revocation exceeded the statutory maximum available to the judge. His appointed counsel filed an Anders brief. See Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit decided that his case raised an issue that was not only non-frivolous, but meritorious. It vacated and remanded for further proceedings. It denied counsel’s request to withdraw and sent the case back to the district court for re-sentencing.

Normally, if appointed counsel files a compliant Anders brief, and the Court decides that there are non-frivolous issues, it appoints new counsel to brief those issues, receives a brief from the government, and then decides the case, either affirming or granting relief. In this case, the Court studied the record and granted relief without hearing from the government. Given the facts of the case (which are so detailed and so unique that it would serve no purpose to recite them here), the Court could not be faulted if it had merely explained that in order to appraise the Anders brief, it had put in enough work to know the correct outcome and did not need to trigger a new round of defense briefing and government reply, all performed while Mr. Eskridge served out a sentence short enough that his ultimate victory would be rendered academic.

But the Court did not take that approach. Instead, it reasoned that Mr. Eskridge, although he had a statutory right to appointed counsel, did not have a constitutional right to appointed counsel. It held that in supervised release revocations the prisoner has a constitutional right to appointed counsel only when he or she claims there was no violation of the conditions of supervised release or, if there was a violation, special conditions make revocation inappropriate. Mr. Eskridge was denying neither a violation nor the appropriateness of revocation. He argued solely that the prison term was in excess of the statutory maximum. Thus, under this construct, his right to counsel was purely statutory.

What does it mean to have a statutory, but not a constitutional right to appointed counsel? 18 U.S.C. sec. 3006A gives all defendants in federal criminal cases the right to appointed counsel on appeal, even in supervised release cases. There is no exception in the statute for frivolous appeals, and one might question whether the Anders doctrine, which originated in a state prisoner case, and was then refined in state probation revocation cases, has any application to federal prisoner cases so long as section 3006A remains in force. Certainly, the statute establishes no procedure regarding frivolous appeals.

If counsel wants to withdraw, may counsel file a conclusory statement far short of an Anders brief? It is hard to believe the Court wants to sanction that practice, since the Court would then have to do the work that counsel does when filing an Anders brief. If counsel must file an Anders brief, how does the Court proceed upon finding that there is indeed a non-frivolous issue? Will it seek a government brief, especially if it believes that there may be an issue, but cannot resolve it as decisively as it did in Mr. Eskridge’s case? Remember that these questions about procedure will arise only in this small slice of cases, as well as in probation revocations.(The opinion suggests in a very indirect way that this approach could also apply to actions under 28 U.S.C. sec. 2255, but the relatively recent requirement of a certificate of appealability would seem to winnow out at any earlier stage those appeals with no perceived merit).