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Anders Briefs and Other Issues for Appeal

Anders Briefs and 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.

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Anders Briefs and Other Issues for Appeal

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  1. Anders Briefsand 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

  2. 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))

  3. 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 counsel

  4. When are there no issues? Losers v. Frivolous Claims • Many “losers” can and should be raised when winners or marginal issues can’t be found • Anders should be filed only when potential issues are “wholly frivolous” • Fifth Circuit checklist

  5. 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)

  6. 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 (2004) • hearsay exception not end-run around Confrontation Clause

  7. 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” card?

  8. Anders in the States • Anders procedure is NOT constitutionally required • Smith v. Robbins, 120 S. Ct. 746 (2000) • One method among several • State procedures vary by jurisdiction

  9. 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

  10. 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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