                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-16-1997

United States v. Coney
Precedential or Non-Precedential:

Docket 96-1740




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Recommended Citation
"United States v. Coney" (1997). 1997 Decisions. Paper 159.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/159


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Filed July 16, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-1740

UNITED STATES OF AMERICA

v.

ERNEST CONEY,
a/k/a "Jerome"

Ernest Coney,

Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 92-cr-00017-4)

Submitted On Motion Pursuant to Third
Circuit LAR 34.1(a) May 20, 1997

Before: SLOVITER, Chief Judge, STAPLETON and
ALDISERT, Circuit Judges

(Filed July 16, 1997)

Christine M. Adair
Philadelphia, PA 19102

Attorney for Appellant
Kathy A. Stark
Office of United States Attorney
Philadelphia, PA 19106

Attorney for Appellee

OPINION OF THE COURT

SLOVITER, Chief Judge.

Christine Adair, counsel for appellant Ernest Coney, has
moved for leave to withdraw from her representation of the
appellant. The motion raises an issue of the application of
our local appellate rules.

Coney was convicted and sentenced as a result of a
violation of probation. After he filed a pro se petition for
appeal, Adair, who represented him in the district court,
was appointed by this court pursuant to the Criminal
Justice Act of 1964, 18 U.S.C. § 3006A. She appropriately
briefed the matter on appeal, and the decision of the
district court was affirmed by this court with a
Memorandum Opinion on March 27, 1997. Although Coney
had requested Adair to file a petition for rehearing, Adair
did not file a timely petition for rehearing. Instead, she
sought leave to withdraw on the ground that after reviewing
this court's opinion and examining the cases relied on by
this court, "it is my opinion that no further appeal on this
matter is warranted."

Adair explained that her trial schedule, which involved
several homicide cases, prevented her from filing a timely
letter with the Clerk's Office and that in addition to moving
for leave to withdraw as counsel she sought leave to submit
a payment voucher. Counsel's motion raises what may be
seen as a tension in our local rules and our treatment of
counsel's obligation once an appeal has been completed.
We publish this opinion to set forth our interpretation of
counsel's obligation.

Generally, appointed counsel in cases other than those in
which a brief has been filed pursuant to Anders v.
California, 386 U.S. 738 (1967), will file a petition for

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rehearing. By so proceeding, counsel may seek to avert a
potential claim of ineffective assistance of counsel or may
believe that the filing of a petition for rehearing en banc is
required or expected in direct criminal appeals. The latter
would be based on a misconception, as this court, in an
effort to staunch the numerous and generally meritless
petitions for rehearing, provides in Local Appellate Rule
35.4:

As noted in FRAP 35, in banc hearing or rehearing of
appeals is not favored. Counsel have a duty to the
Court commensurate with that owed their clients to
read with attention and observe with restraint the
Required Statement for Rehearing in Banc set forth in
3rd Cir. LAR 35.1. Counsel are reminded that in every
case the duty of counsel is fully discharged without
filing a suggestion for rehearing in banc unless the
case meets the rigorous requirements of FRAP 35 and
3rd Cir. LAR 35.1.

Local Appellate Rule 35.1 provides that a petition for
rehearing must contain the following statement by counsel:

I express a belief, based on a reasoned and studied
professional judgment, that the panel decision is
contrary to decisions of the United States Court of
Appeals for the Third Circuit or the Supreme Court of
the United States, and that consideration by the full
court is necessary to secure and maintain uniformity of
decisions in this court, i.e., the panel's decision is
contrary to the decision of this court or the Supreme
Court in [citing specifically the case or cases], OR, that
this appeal involves a question of exceptional
importance, i.e. [set forth in one sentence].

Although the local rules do not set forth a detailed
procedure for an attorney to withdraw at this stage of
representation, these general expressions of court policy
make it clear that counsel, having appropriately briefed and
argued an appeal, is not under an obligation to file a
petition for rehearing or rehearing en banc. Nor is such a
filing required under the Criminal Justice Act or the Guide
to Judiciary Policies and Procedures which implement the
Act. The determination whether to file rests in the sound

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professional judgment of the attorney in light of all
circumstances, and any motion by counsel to withdraw is
treated on a case-by-case basis.

In considering whether an attorney for an indigent
defendant has the duty to file a petition for certiorari when
the defendant so requests, the Supreme Court in Austin v.
United States, 513 U.S. 5, 8 (1994), directed the Circuit
Judicial Councils to revise their Criminal Justice Plans if
necessary so that counsel would not be obliged to file
petitions for certiorari that would present frivolous claims
in violation of Supreme Court rules. It stated:

[T]hough 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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), that right
does not extend to forums for discretionary review.
Ross v. Moffitt, 417 U.S. 600, 616-617, 94 S.Ct. 2437,
2446-47, 41 L.Ed.2d 341 (1974).

Id.

Unlike the mandatory jurisdiction of the courts of
appeals in a direct criminal appeal, en banc rehearing by
the courts of appeals is discretionary. See LAR 35.4. It
would create a conflict with our Rules were we to require
counsel to file a petition for rehearing if counsel believes
the petition is without merit. In such a case, counsel
should file a petition for leave to withdraw, with notice to
the appellant that s/he may file a pro se petition for
rehearing.

This, of course, should not be interpreted as a basis for
appellants in criminal cases to seek substitute counsel. A
motion for appointment of new counsel at this stage would
unduly tax the Criminal Justice Act funds. Generally there
will be no basis for appointment of new counsel once the
original counsel has withdrawn following completion of the
appeal on the ground that further proceedings would be
frivolous.

Because counsel in this case may not have fully
understood the appropriate procedure, we will deny the
motion to withdraw at this time. Should counsel, following

                     4
review of the file, determine in her sound professional
judgment that she cannot make the statement required in
Local Appellate Rule 35.1, counsel may file a motion on
behalf of appellant to recall the mandate so that appellant
will have an opportunity to file a timely pro se petition for
rehearing should he so desire. Counsel will then have
fulfilled her responsibilities to her client and the court, and
may then renew her motion for leave to withdraw, of course
providing notice to the appellant.

Our willingness to allow counsel to reconsider andfile a
petition for rehearing in no way reflects our view that this
is an appropriate case for filing a petition for rehearing or
a petition for a writ of certiorari. Supreme Court Rule 42.2
allows an award of damages or costs against counsel or her
client if a frivolous petition for writ of certiorari is filed.

Adair's motion for leave to withdraw as counsel is denied
without prejudice.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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