                                In the
    United States Court of Appeals
                  For the Seventh Circuit
                             ____________

No. 06-2801
UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,
                                    v.

SHAABAN HAFIZ AHMAD ALI SHAABAN,
                                                 Defendant-Appellant.
                             ____________
                Appeal from the United States District Court
        for the Southern District of Indiana, Indianapolis Division.
                 No. 05 CR 34—John Daniel Tinder, Judge.
                             ____________
               ON MOTION TO RECALL THE MANDATE
                             ____________
                          JANUARY 28, 2008Œ
                            ____________


  RIPPLE, Circuit Judge (in chambers). This matter is before
the court on the defendant’s motion to recall the mandate
and defense counsel’s response to that motion.
  Shaaban Hafiz Ahmad Ali Shaaban was convicted after
a jury trial of various offenses relating to his attempt to
sell the names of CIA agents working covertly in Iraq to


Œ
    This opinion was released initially in typescript form.
2                                              No. 06-2801

the Iraqi Intelligence Service. The district court sentenced
Mr. Shaaban to 160 months’ imprisonment. Mr. Shaaban
appealed, but his appointed counsel sought to withdraw
under Anders v. California, 386 U.S. 738 (1967), because he
could not discern a nonfrivolous issue to pursue. We
denied this motion and ordered defense counsel to
address whether the district court miscalculated
Mr. Shaaban’s guidelines range by adding more than
two levels for obstruction of justice. After a careful ex-
amination of the record, we concluded that, rather than
miscalculating the guidelines range, the district court
properly exercised its discretion to sentence Mr. Shaaban
above the guidelines range. No petition for rehearing
or rehearing en banc was filed, and the deadline to file
one has now passed. See Fed. R. App. P. 35(c), 40(a).
  Just two days before we issued our order affirming
Mr. Shaaban’s sentence, defense counsel had sent
Mr. Shaaban a letter explaining that, if his appeal was
“denied,” defense counsel would “argue for rehearing
and the appeal would not be final until rehearing were
denied.” Shortly after the deadline to file a petition for
rehearing lapsed, Mr. Shaaban received another letter
from counsel, explaining that we had affirmed his sen-
tence, but this letter made no mention of the previously
promised petition for rehearing. Concerned, Mr. Shaaban
drafted and mailed a pro se petition for rehearing, which
the clerk of this court returned unfiled because it was
untimely and the mandate had already issued. Now,
Mr. Shaaban has filed a motion to recall the mandate,
arguing that counsel reneged on his promise to file a
petition for rehearing and that Mr. Shaaban should be
allowed to file one.
  We ordered counsel to respond to this motion. In his
response, defense counsel admits that he initially in-
No. 06-2801                                                3

formed Mr. Shaaban that he intended to file a petition for
rehearing, but explains that he changed his mind when he
read our order affirming the sentence imposed on
Mr. Shaaban by the district court. Counsel further ex-
plains that he had anticipated that we would conclude
that the district court committed harmless error when it
miscalculated Mr. Shaaban’s guidelines range. Instead,
we concluded that the district court intended to sen-
tence Mr. Shaaban above the guidelines range. Defense
counsel asserts that, although he could have raised
nonfrivolous issues with regard to the former conclu-
sion, the latter left no “non-frivolous basis for moving
for re-hearing.” Counsel concedes, however, that he
“erred in not adequately explaining this to [his] client.” He
also explains that he is willing to file a petition for re-
hearing on Mr. Shaaban’s behalf if the court deems it
necessary.
   An appointed counsel’s duties do not end when this
court renders an adverse decision; counsel must consider
filing post-opinion pleadings in the court of appeals. See
Seventh Circuit Criminal Justice Act Plan, § V.3; United
States v. Hawkins, 505 F.3d 613, 614 (7th Cir. 2007) (Ripple,
J., in chambers); United States v. Price, 491 F.3d 613, 615
(7th Cir. 2007) (Ripple, J., in chambers); United States v.
Howell, 37 F.3d 1207, 1209-10 (7th Cir. 1994) (Ripple, J., in
chambers). Our Criminal Justice Act Plan explains that it
is counsel’s duty to file a petition for rehearing if a de-
fendant requests that counsel do so and there are reason-
able grounds for such a petition. See Seventh Circuit
Criminal Justice Act Plan, § V.3.
  I cannot conclude that counsel has fulfilled adequately
this duty. Counsel was under a continuing obligation to
communicate with Mr. Shaaban. Counsel failed to explain
4                                             No. 06-2801

adequately to Mr. Shaaban why, despite counsel’s initial
view that a petition for rehearing would be appropriate,
our actual disposition foreclosed the arguments that he
had intended to raise in a petition for rehearing. Given
the course of events, Mr. Shaaban was left with the mis-
apprehension that a petition for rehearing was filed.
  Counsel is not obligated to file a frivolous petition,
Hawkins, 505 F.3d at 614-15. Here, counsel maintains,
with little explanation, that a petition for rehearing
would be frivolous in this case because the court’s order
was “rooted in a factual determination.” However, a
petition for rehearing is not necessarily frivolous simply
because it requires a fact-based inquiry. See id. at 615.
Moreover, counsel undermines his conclusion that a
petition would be frivolous in this case by character-
izing the record as “ambiguous,” describing this court’s
conclusion as “debatable,” and expressing a willingness
to file a petition if required to do so.
  Mr. Shaaban does not request expressly the appointment
of new counsel, but, throughout his motion, he expresses
strong displeasure with present counsel. Moreover,
counsel’s response does demonstrate that he both failed
to communicate with Mr. Shaaban and already has
formed the opinion that a petition for rehearing is unnec-
essary. Under these circumstances, to ensure the full
protection of Mr. Shaaban’s right to counsel, defense
counsel is relieved from his appointment to represent
Mr. Shaaban in this case. New counsel for Mr. Shaaban
will be appointed in a separate order. I express no view
as to whether a petition for rehearing would be frivolous.
Newly appointed counsel shall, within 30 days from the
date of appointment, file either a petition for rehearing
or a motion to withdraw on the ground that any such
No. 06-2801                                               5

petition would be frivolous. If newly appointed counsel
seeks withdrawal because he can discern no nonfrivolous
issue to raise in a petition for rehearing, Mr. Shaaban
shall have the opportunity to file a response pursuant to
Seventh Circuit Rule 51(b).
                                           IT IS SO ORDERED.
A true Copy:
       Teste:

                         _____________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




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