Œ This chambers opinion was released initially in typescript form.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3780

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TERRAUN PRICE, also known

as BOO ROCK,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 01 CR 98—James T. Moody, Judge.

____________

ON MOTION FOR APPOINTMENT OF COUNSEL

____________

JULY 3, 2007Œ

____________

RIPPLE, Circuit Judge (in chambers). Terraun Price has

filed a motion for the appointment of counsel to assist him

in filing a petition for certiorari in the Supreme Court of

the United States, seeking further review of the judgment

of this court. See United States v. Price, 418 F.3d 771 (7th Cir.
2 No. 03-3780

2005), and United States v. Price, 155 F. App’x 899 (7th Cir.

2005). For the reasons set forth in this chambers opinion,

the mandate of this court is recalled and new counsel is

appointed to assist Mr. Price in filing a petition for certiorari in the Supreme Court of the United States.

A.

A jury found Terraun Price guilty of conspiring to

distribute 50 grams or more of cocaine base and of using

a telephone to facilitate the commission of a felony. Price,

418 F.3d at 775. The district court sentenced him to life

imprisonment. We affirmed Mr. Price’s conviction, but

ordered a limited remand pursuant to United States v.

Paladino, 401 F.3d 471, 480-81 (7th Cir. 2005). After the

district court indicated that it would have imposed the

same sentence had it known that the Guidelines were

merely advisory, we affirmed Mr. Price’s sentence. Price,

155 F. App’x at 900.

Mr. Price subsequently filed a motion seeking relief

from his criminal judgment pursuant to 28 U.S.C. § 2255

in the Northern District of Indiana, Hammond Division. In

that motion, Mr. Price raised the claim that his appellate

counsel was ineffective when he failed to file a petition for

a writ of certiorari asking the Supreme Court to review

our affirmance of his conviction. The district court

stayed further consideration of the § 2255 motion to allow

Mr. Price to ask this court to recall its mandate in the direct criminal appeal and to appoint counsel to file a

petition for a writ of certiorari. Mr. Price then filed his

motion in this court, and I directed that his appointed

appellate counsel respond.
No. 03-3780 3

Although Mr. Price does not have a constitutional right

to counsel while seeking certiorari, Ross v. Mofitt, 417 U.S.

600, 617 (1974), he does have a statutory right based on the

Criminal Justice Act, 18 U.S.C. § 3006A. Wilkins v. United

States, 441 U.S. 468, 469 (1979) (per curiam). See also United

States v. Howell, 37 F.3d 1207, 1209 (7th Cir. 1994) (Ripple,

J., in chambers). Indeed, the Seventh Circuit Criminal

Justice Act Plan requires an appointed attorney to prepare

and to file a petition for a writ of certiorari if, after consultation, the represented person requests it and there

are reasonable grounds for counsel properly to do so. See

Seventh Circuit Plan, V.3. If counsel concludes that reasonable grounds do not exist, counsel must promptly

inform the defendant, and the defendant may request this

court to order counsel to seek certiorari. Id.

In Wilkins, the Supreme Court examined the proper

remedy for a defendant whose court-appointed attorney

had failed to file a timely petition for writ of certiorari

despite a defendant’s written request. The Court concluded

that such a defendant can file a motion for appointment

of counsel in the court of appeals and that the court, in

response, “could have vacated its judgment affirming

the convictions and entered a new one, so that this petitioner, with the assistance of counsel, could file a timely

petition for certiorari.” Wilkins, 441 U.S. at 469. In Howell,

I recalled a mandate and appointed new counsel to determine whether to file a petition for rehearing or a petition

for a writ of certiorari. 37 F.3d at 1210.

B.

The record before me raises a very serious question as

to whether Mr. Price was afforded his statutory right to
4 No. 03-3780

the assistance of counsel. In a letter dated December 7,

2005, his appointed appellate counsel, commenting on our

final order following the district court’s reply to the

Paladino remand, wrote that “[t]he next step would be to

file a writ of certiorari to the United States Supreme Court,

your last bastion of hope for reversal of the Trial Courts

(sic) sentence. We will begin the process and let you know

the outcome as soon as possible.” See Motion for Appointment of Counsel, Att. 2 at 2. In a later letter, dated May 31,

2006, the same attorney, responding to an inquiry of

Mr. Price, wrote: “[P]lease be advised that we did not

file the Writ of Certiorari because we did not feel it prudent

to do so.” Id., Att. 3 at 1.

In responding to the present motion to appoint counsel, counsel represents that he reviewed the relevant facts

and case law and determined that it would be not appropriate to file a petition for a writ of certiorari. He also

claims that he so advised Mr. Price by letter dated May 15,

2006. It appears that counsel is referencing his letter of

May 31, 2006. Counsel also explains that his failure to

follow up with Mr. Price regarding counsel’s conclusion

that no reasonable grounds existed for filing a certiorari

petition was due, in large part, to his preparation for trial

in a death penalty case that lasted the entire month of

May 2006. Finally, counsel requests leave to withdraw as

counsel and asks the court to appoint new counsel to file

a petition for a writ of certiorari on Mr. Price’s behalf. The

record is silent as to whether counsel has advised Mr. Price

about our first opinion, prior to the Paladino remand, in

which we affirmed his conviction. There is, however, a

suggestion that no such communication took place. In his

letter of December 7, 2005 counsel transmitted our final

non-precedential order and noted that the order “summarizes the 7th Circuit’s review of your case.”
No. 03-3780 5

Based on Mr. Price’s motion and counsel’s response,

I must conclude that appellate counsel did not comply

with his obligations under the Seventh Circuit Criminal

Justice Act Plan. Counsel’s first letter, fairly read, advised

Mr. Price that counsel was preparing to file a petition for

certiorari: “We will begin the process and let you know the

outcome as soon as possible.” Mr. Price was not informed

that counsel had not filed a petition until he made his later

inquiry. Mr. Price, therefore, was unable to ask this court to

order counsel to seek certiorari.

As I noted in Howell, the duty of appointed counsel to

file a petition for certiorari is tempered by the duty to

refrain from filing “frivolous” pleadings. Howell, 37 F.3d

at 1209. Whether a document can be characterized as

legally “frivolous” is a determination that must take into

account the nature of the document and the circumstances

of the particular case. The Supreme Court has said explicitly that “[r]eview on a writ of certiorari is not a matter of

right but of judicial discretion” and that it will be granted

“only for compelling reasons.” Rule 10, Rules of the

Supreme Court of the United States.

At this point, when there has been no meaningful

consultation between counsel and the defendant, it

would be premature for me to say whether a petition

would be warranted. At the very least, Mr. Price has the

right to consult with counsel about the appropriateness

of filing a petition for a writ of certiorari. Accordingly,

the mandate of this court is recalled. New counsel will

be appointed. Counsel may file, within 14 days of appointment, a petition for rehearing in this court. Alternatively,

counsel may elect to file immediately a petition for certiorari in the Supreme Court. If counsel, after consultation

with Mr. Price, determines that it would be inappropriate
6 No. 03-3780

to file a petition for certiorari, he must communicate that

appraisal to Mr. Price so that he can ask, if he chooses, this

court to determine whether it should order that such a

petition be filed.

MANDATE RECALLED; COUNSEL APPOINTED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-13-07