No. 97-5238
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997
BRIAN L. MILLER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C.  20530-0001
(202) 514-2217
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QUESTIONS PRESENTED
    1.  Whether petitioner was denied his right to petition this
Court for a writ of certiorari when his appointed counsel declined
to file a petition and instead was granted leave by the court of
appeals  to withdraw from the  case on  the grounds  that no
nonfrivolous issues existed for review.
    2.  Whether the Tenth Circuit abused its discretion in
denying petitioner's motion to recall, set aside, and reenter the
court's mandate in order to allow him to file a timely petition
seeking this Court's review of his conviction.
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In the Supreme Court of the United States
OCTOBER TERM, 1997
No. 97-5238
BRIAN L. MILLER, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINION BELOW
   The opinion of the court of appeals  (Pet. App. 1-35) is
reported at 84 F.3d 1244.  The order of the court of appeals
denying petitioner's motion to recall the mandate (Pet. App. 74) is
not reported.
JURISDICTION
  The judgment of-the court of appeals was entered on May 20,
1996.  On April 25, 1997, the court of appeals denied petitioners
motion to recall,  set aside,  and reenter the mandate and for
appointment of counsel.  The petition for a writ of certiorari was
filed on July 17, 1997, and is accordingly out of time under Rule
13.1 of this Court's Rules.  The jurisdiction of this Court is
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invoked under 28 U.S.C. 1254(1).
STATEMENT
    Following a jury trial in the United States District Court for
the District of Kansas, petitioner was convicted of possession of
methamphetamine with intent to distribute it, in violation of 21
U.S.C. 841(a) (l); possession of marijuana with intent to distribute
it,  in violation of 21 U.S.C.  841(a) (l); using or carrying a
firearm during and in relation to a drug trafficking offense, in
violation of 18 U.S.C. 924(c) (l); and being a-felon in possession
of a firearm, in violation of 18 U.S.C. 922(g). 1  He was sentenced
to 322 months' imprisonment, to be followed by a five-year term of
supervised release.  The court of appeals affirmed petitioner's
convictions on the drug charges, reversed petitioner's convictions
on the firearms charges, and remanded for resentencing.  Pet. App-
1-35.   On remand,  petitioner was  resentenced to 262 months'
imprisonment,  to be followed by a five-year term of supervised
release.
   1.  The evidence at trial showed that on March 8, 1994, a
Kansas Highway Patrol officer stopped the van petitioner was
driving for-speeding. Michael Ray Hicks was a passenger in the
van.  During the course of the stop, the officer saw a drug pipe in
the center dashboard ashtray, and arrested petitioner and Hicks for
possession of drug paraphernalia.  It was later determined that the
___________________(footnotes)
   1 Co-defendant Michael Ray Hicks was convicted on the drug
charges, of using or carrying a firearm during and in relation to
a drug trafficking offense, and of interstate transportation of a
stolen vehicle.
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van was stolen.  During an inventory search of the van, the officer
found a glass drug pipe with methamphetamine residue under the
carpet behind the passenger seat, and,   in the rear of the van, a
blue bag containing methamphetamine, marijuana, and a loaded Smith
& Wesson semi-automatic handgun.  Pet. App. 3-5. The officer also
found a large black bag containing, among other things, personal
items belonging to Hicks, a loaded .380 automatic handgun, a set of
scales  with methamphetamine  residue, a  small spoon,  zip-lock
baggies, and notebooks containing drug ledgers. The writing in one
of the notebooks matched the writing found in petitioners address
book, which was found on petitioner's belt. The officer also found
a package containing marijuana hidden under the right rear quarter
panel of the van.  Pet. App. 3-5, 15-16.
    On appeal, petitioner contended that there was insufficient
evidence to support his drug and-firearms convictions.  The court
of appeals affirmed petitioner's drug convictions, finding that a
reasonable jury could infer from the presence of petitioner's drug
notebook inside Hicks' black bag along with the tools of the drug
trade that both petitioner and Hicks were jointly involved in drug
distribution.  Pet.  App .  17-18.  Because neither of the bags
contained sufficient belongings of petitioner to establish that the
bags were his, however, the court found insufficient evidence to
show that petitioner had knowing ownership or control over either
of the firearms found inside the bags.  The court rejected the
argument that petitioner's knowledge that the bags contained drugs
and drug paraphernalia established his awareness that the bags
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contained firearms.  Pet. App. 19-20. 2
2.  Petitioner's counsel advised petitioner by letter of the
court of appeals' decision.  Pet. App. 62. 3  In a letter dated
June 3, 1996, petitioner acknowledged receiving counsel's letter
and requested a copy of the court of appeals' opinion.  Petitioner
also requested counsel to file a petition for rehearing, and, in
the event such petition was unsuccessful, a petition for a writ of
certiorari.  Pet. App. 59.
    In  early  June 1996,  counsel  responded in  writing to
petitioner's request by stating that she did not intend to file a
petition for rehearing.  She observed that petitioner was fortunate
that the government had not filed a rehearing petition.  Counsel
also advised that the law had changed concerning her duty to file
a petition for a writ of certiorari.  Counsel stated that pursuant
to the Criminal Justice Act, defense counsel was permitted to file
a motion to withdraw as counsel if she believed there were no valid
grounds for seeking Supreme Court review. Counsel stated:  "Unless
there is a drastic change in the law in the near future, in my
opinion there are no grounds for seeking certiorari review in the
___________________(footnotes)
    2  The court reversed Hicks' conviction for using or carrying
a firearm during and in relation to a drug trafficking offense, and
remanded for a new trial on that charge, after finding that the
jury instructions defining "use" under 18 U.S.C. 924(c) ran afoul
of this Court's decision in Bailey v. United States, 116 S. Ct. 501
(1995) .  Pet. App. 20-30.
   3  Most of the letters written by counsel to petitioner
following  the court of  appeals'  May 20,  1996 decision were
erroneously dated "April 23, 1996."  We therefore are reciting the
dates alleged by petitioner as the dates he actually received the
various correspondence from defense counsel.
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Supreme Court."  Counsel noted that her decision did not prevent
petitioner from filing a pro se petition for certiorari, and also
that the government had until August 18, 1996, to file a petition
for a writ of certiorari to seek review of the portion of the case
it had lost.  Pet. App. 61.
    On June 12, 1996, "petitioner wrote to counsel and outlined the
reasons he felt the evidence at trial was insufficient to support
his drug  convictions.   Pet.  App .  63-64.   In a postscript,
petitioner disagreed with counsel's view that no basis for further
review existed, and he insisted that counsel prepare a petition for
a writ of certiorari.  Petitioner alluded to an unnamed Supreme
Court decision that he believed had barred defense counsel from
withdrawing as counsel if her client requested that she file a
certiorari petition. Pet. App. 65.
    On July 1, 1996,  counsel filed a motion in the court of
appeals to withdraw from representation, and served a copy of the
motion on petitioner.  The motion recited that there were "no
grounds for seeking Supreme Court review that are nonfrivolous, or
that are consistent with the standards for filing a petition
contained in the Rules of the Supreme Court. "  Pet. App. 82.  That
motion was in compliance with Tenth Circuit Rules, which direct
counsel to  move  to withdraw from representation if  counsel
determines there are no grounds for seeking Supreme Court review
that are not frivolous and consistent with the standards for filing
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certiorari petitions.  10th Cir. R. Addendum I, 2.d. 4  On July 18,
1996, the court of appeals granted the motion.  Pet. App. 67.
   On July 17, 1996, petitioner was transferred from his place of
imprisonment at FCI Terminal Island,  California,  to Kansas for
resentencing.  Pet. App. 48.  On September 26, 1996, while awaiting
resentencing, petitioner received a copy of the court's July 18,
1996, order granting counsel's motion to withdraw, as well as a
letter from counsel advising petitioner of that order.  The letter
from counsel stated that if petitioner wished to file a pro se
petition for a writ of certiorari, it would be due on August 18,
1996.  Pet. 6; Pet. App. 48-49.  These two pieces of correspondence
had originally been sent to FCI Terminal Island, California, and
then been forwarded to petitioner in Kansas. Ibid
    On November 18, 1996, petitioner was resentenced,  and on
___________________(footnotes)
   4  The Tenth Circuit's Rule provides:
    If the judgment of this court is adverse to the
client, counsel must inform the client of the right to
petition the Supreme Court of the United States for a
writ of certiorari.  Counsel must file a petition for a
writ of certiorari if the client requests that such a
review be sought and, in counsel's considered judgment,
there are grounds for seeking Supreme Court review that
are not frivolous and are consistent with the standards
for filing a petition contained in the Rules of the
Supreme Court and applicable case law.  If, on the other
hand, the client requests that counsel file a petition
for a writ of certiorari and, in counsel's considered
judgment, there are no grounds for seeking Supreme Court
review that are non-frivolous and consistent with the
standards for filing a petition contained in the Rules of
the Supreme Court and applicable case law, counsel must
submit a written motion for leave to withdraw from the
representation with this court promptly after the entry
of judgment.  If this court grants counsel's motion and
terminates counsel's appointment, counsel must so advise
the client in writing as soon as possible.
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December 3.0, 1996, he was returned to FCI Terminal Island.  Pet.
App . 49-50.  He thereafter wrote counsel ,  advised that he was
preparing a petition seeking review of his case pursuant to 28
U.S.C. 2255, and requested counsel to send him the case file.  Pet.
6-7; Pet. App. 49-50, 71.  On January 10, 1997, counsel sent
petitioner the requested material.  Pet. App. 50.
    On April 14, 1997, petitioner filed a petition to recall, set
aside, and reenter the mandate, and requested the appointment of
counsel.  Pet. App . 45-53.  Petitioner claimed that given the
circumstances outlined above, the mandate should be reentered to
allow  him the opportunity to file a petition  for writ of
certiorari.  Pet. App. 53. On April 25, 1997, the court of appeals
denied the petition.  Pet. App. 74.
ARGUMENT
     1.  Petitioner contends (Pet.  7-11) that by granting his
counsel's motion to withdraw based solely on her "bare bones"
assertion that there were no nonfrivolous grounds for seeking
review in this Court, the Tenth Circuit failed to comply with the
requirements of Anders v. California, 386 U.S. 738 (1967).  That
claim lacks merit.
    In Anders, this Court held that a criminal defendant may not
be denied the assistance of counsel on direct appeal based solely
on appointed counsel's bare assertion that there is no merit to the
appeal.  Rather, the Court outlined procedures designed to protect
the "constitutional requirement of substantial equality and fair
process," Anders, 386 U.S. at 744,  set forth in Douglas v.
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California, 372 U.S. 353 (1963),  in which the Court held that
denial of counsel to indigents on first appeal as of right violated
the Equal Protection Clause.  Pursuant to Anders, when appointed
counsel deems his client's claims on appeal to be wholly without
merit, he must first advise the court that the case is frivolous
and request permission to withdraw.  Such a request must be
accompanied by a brief referring to anything in the record that
might arguably support the appeal.  If, after a full examination of
the proceedings, the court of appeals finds no nonfrivolous issue
for appeal, it may proceed to consider the appeal on the merits
without assistance of counsel.  Anders, 386 U.S. at 744.  See also
Penson v. Ohio, 488 U.S. 75, 80 (1988).
    The Court has subsequently made clear that the principles
announced in Anders apply only to a defendant's first appeal of
right,  and do  not  extend  to discretionary appeals,  such as
petitions for writs of certiorari.  See Pennsylvania v. Finley, 481
U.S. 551, 555 (1987) ("Anders established a prophylactic framework
that is relevant when, and only when, a litigant has a previously
established constitutional right to counsel" and does not apply to
collateral post-conviction review) ; ROSS V. Moffitt, 417 U.S. 600,
616-617 (1974) (criminal defendants have no constitutional right to
counsel to pursue discretionary state appeals or applications for
review in Supreme Court) .  Any doubt that appointed counsel has no
duty to file a frivolous petition for a writ of certiorari at the
request of his client was resolved in Austin v. United States, 513
Us. 5 (1994).  There, appointed counsel applied to this Court for
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leave to withdraw as counsel on the ground that no meritorious
issues existed warranting the filing of a petition for certiorari,
and the Court granted the application.  The Court observed that
many of the courts of appeals had promulgated rules under the
Criminal Justice Act that imposed a mandatory duty on appointed
counsel to file a petition for a writ of certiorari on behalf of an
indigent client, even if the legal arguments were frivolous. Id.
at 7.  After reiterating that the constitutional right to appointed
counsel on appeal does not extend to forums for discretionary
review, the Court held that the Supreme Court Rules dealing with
the grounds for granting certiorari, and penalizing frivolous
filings, "apply equally to petitioners using appointed or retained
counsel."   Id. at 8.  Accordingly, the Court directed the Circuit
Judicial  Councils to revise their Criminal Justice Plans if
necessary to  avoid  any  conflict  with  the  Court' s  Rules,
specifically noting that the revised plans  "should allow for
relieving a lawyer of the duty to file a petition for certiorari if
the petition would present only frivolous claims."  Ibid.  Thus ,
the withdrawal requirements outlined in Anders have no application
to petitioner's petition for certiorari.
    Petitioner also errs in asserting (Pet. 10-11) that the result
reached by the Tenth Circuit in this case conflicts with that of
the Fifth Circuit in United States v. James, 990 F.2d 804, 805 (5th
Cir. 1993). In James  the Fifth Circuit sympathized with counsel's
desire not to file a frivolous petition, but held that under the
Fifth Circuit's Criminal Justice Plan in effect at that time,
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counsel was required to file a petition for certiorari if his
client so requested. The court also reminded counsel of the rule
of Anders in the event counsel was unable to raise any issue of
merit.  Id. at 805.  James,  however,  was decided before this
Court's decision in Austin, and the Circuit Rule cited in James was
among those that this Court in Austin identified as improperly
conflicting with the Supreme Court Rule on frivolous petitions
Austin, 513 U.S. at 7 n.l.  In the wake of Austin, the Fifth
Circuit has amended its rules to allow, as the Tenth Circuit did
here,  appointed  counsel  to decline  to file a petition for
certiorari and to withdraw from the case "either upon motion of
counsel suggesting the futility of such a petition or upon a sua
sponte finding and order by the court of appeals relieving counsel
of that obligation. "  5th Cir. R. App. III, 4.  Accordingly, the
procedures followed by the Tenth Circuit in the present case are
consistent not only with this Court's announcement in Austin, but
also with the procedures adopted by other circuits in the wake of
Austin.
   2.  Petitioner also claims (Pet. 11- 14) that the Tenth
Circuit abused its discretion in denying his request to vacate and
reenter the mandate in order to allow him to file a timely petition
seeking this Court's review of his conviction.  According to
petitioner,  such relief should have been granted because when
counsel's  motion to  withdraw  was  mailed to  his place of
incarceration in California, he was already en route to Kansas for
resentencing;  accordingly, petitioner claims that he did not
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receive a copy of the motion until September 26, 1996, after the
time had run to petition this Court for review.  Pet. 7.
    It is generally accepted that an appeals court has authority
to vacate an otherwise-final judgment and recall its mandate under
appropriate circumstances,  see 16 C.  Wright, A. Miller, & E.
Cooper,  Federal Practice and Procedure  3938, (2d ed.  1996)
(describing appellate court's inherent power of recall), and that
the decision to do so in a given case is within the sound
discretion of the appellate court.  Zipfel v. Halliburton Co. , 861
F.2d 565, 567 (9th Cir. 1988); American Iron & Steel Institute v.
EPA, 560 F.2d 589, 593-594 (3d Cir. 1977).  The power to recall a
mandate,  however, is  an. extraordinary  remedy  and  should be
exercised sparingly,  only upon a showing of good cause and to
prevent injustice, and only when exceptional circumstances exist to  I
justify recall or modification of a prior judgment.  See, e.g.,
United States  v. Skandier 1997 WL 581662 (3d Cir. Sept. 22, 1997)
(recall "is an extraordinary remedy to be used only" in unusual
circumstances to prevent injustice or otherwise for good cause") ;
Ute Indian Tribe v. Utah  114 F.3d 1513, 1521 (l0th Cir. 1997)
(power to recall  "is limited and should be exercised only in
extraordinary circumstances"); Ruiz v. Norris, 104 F.3d 163, 164
(8th Cir.  1997) (power to recall "is rarely exercised"  and is
"reserved for extreme and necessitous cases") ; Bellsouth Corp. v.
FCC, 96 F.3d 849, 851 (6th Cir. 1996) (party seeking recall "must
demonstrate good cause for that action through a showing of
exceptional circumstances") ; Sargent v. Columbia Forest Products,
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Inc., 75 F.3d 86, 89 (2d Cir. 1996)  (recall power must be
"exercised  sparingly"  and is  reserved  for  "exceptional
circumstances") ; United States v. Feldman, 830 F.2d 134,
135 (9th Cir. 1987) (recall of mandate is an "extraordinary remedy * * *
only granted in cases where it is necessary to serve the interests
of justice") ; Johnson v. Bechtel Assocs. Professional Corp. , 801
F.2d  412,  416  (D.C.  Cir.  1986) (requiring  "exceptional
circumstances") .
    Petitioner  has  not  shown  that  his are  "exceptional
circumstances"  warranting  recall,  or that the Tenth Circuit
otherwise abused its discretion in denying his recall motion
Although some courts have authorized recall where defense counsel
fails  to notify a  defendant of his  right  to petition  for
certiorari, see, e.g., United States v. Thomas, 562 F.2d 576, 577
(8th Cir. 1977); Ordonez v. United States, 588 F.2d 448, 449 (5th
Cir.) (per curiam), cert. denied, 441 U.S. 963 (1979), petitioner
does not claim he lacked notice of his right to petition this Court
for review.  Rather, petitioner concedes that he had notice of his
counsel' s  intention  to withdraw from his case based on her
conclusion that no nonfrivolous claims existed.  He also had notice
of his right to pursue a pro se petition.
    In her letter to petitioner shortly after the decision by the
court of appeals, counsel advised petitioner that recent changes in
the law permitted her to withdraw as counsel, that she would not be
filing a petition for certiorari, and that he was free to file a
pro se petition if he so desired. Furthermore, although petitioner
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now asserts that he did not receive a copy of counsel's motion to
withdraw until September 26, 1996, he made no such claim in his
petition to recall the mandate.  The only two items petitioner
claimed in his recall petition not to have received until September
26, 1996, were the court's order granting the withdrawal motion and
a letter from counsel informing him of that order.  Because
petitioner's recall petition stated that he was not transferred to
Kansas until July 17   well after he would have received a copy of
counsel's withdrawal motion, which was filed on July 1 (Pet. App.
48)   the Tenth Circuit had good reason to believe that petitioner
had received counsel's withdrawal motion before his transfer to
Kansas.
   Although having notice of his right to file a pro se petition
for  certiorari and of  his  counsel' s  intention  to withdraw,
petitioner did not file a timely certiorari petition, seek an
extension of time within which to do so, or seek a ruling from the
court of appeals to provide him with counsel.  Rather, he relied on
his view that his appellate counsel was constitutionally required
to prepare his petition for certiorari.  While petitioner is not
expected to have knowledge of the law, he cannot reasonably rely on
a legal theory that is at odds with the advice he received from
counsel.   Given  that petitioner has  failed to specify any
nonfrivolous issues he wishes to raise in this Court, and that the
time limits for filing petitions in criminal cases are not
jurisdictional, Schacht v.  United States,  398 U S. 58,  63-64
(1970), there is no basis to conclude that the Tenth Circuit abused
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its  discretion in  denying  petitioner's  motion to  recall .
Accordingly, review of petitioner's claims is unwarranted. 5
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Acting Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
DEBORAH WATSON
Attorney
OCTOBER 1997
   5   This Court has denied review in similar cases, even where
the defendants did not learn that counsel had failed to petition
for writs of certiorari until after. the time to petition had
expired.  See Buchanan v. United States, No. 93-7724, cert. denied,
512 U.S. 1228 (1994); Hopkins v. United States, No. 93-8423, cert.
denied, 512 U.S. 1229 (1994).