In Re: Eric Williams, No. S1658-04 CnC (Norton, J. , July 8, 2005)

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STATE OF VERMONT SUPERIOR COURT Chittenden County, ss.: Docket No. S1658-04 CnC

IN RE ERIC WILLIAMS

ENTRY This matter concerns a post-conviction relief peti tion. Petitioner Eric Williams’s counsel, Mark Furlan, filed a request to withdraw. The court denied this request, holding that Attorney Furlan must first file an affidavit s pecifying (1) petitioner’s claims, (2) law or argument that could conceivably support such cla ims, and (3) a statement that counsel does not consider petitioner’s claims to be warrant ed by existing law or by nonfrivilous argument for the extension, modification, or revers al of existing law or the establishment of new law. Attorney Furlan has now filed a motion to reconsider, submitting two affidavits to demonstrate that the legislative inte nt behind a recent amendment to the law governing rights to counsel in post-conviction reli ef petitions, 13 V.S.A. § 5233(a)(3), was contrary to the court’s ruling.

Part of the court’s reasoning in requiring an affi davit from Attorney Furlan was based on indications from the Vermont Supreme Court that a requirement akin to that of
Anders v. California , 386 U.S. 738, 744–45 (1967), was necessary before a postconviction relief petition counsel could withdraw. See In re Moreno , No. 2004-120, slip op. at 3 (Vt. Nov. 10, 2004) (unpublished mem.); Wo ol v. State , Docket No. 2004-323, slip op. at 1 (Vt. Sept. 9, 2004) (unpublished mem. ). The Court issued both of these decisions after the Legislature amended § 5233(a)(3 ). Thus, Attorney Furlan’s argument that this court’s decision is contrary to the curre nt statute is unavailing.

Moreover, the affidavits that Attorney Furlan subm its do not indicate that thecourt’s ruling is inconsistent with the legislative intent behind the amendment to

§ 5233(a)(3). In one affidavit, Vermont Defender Ge neral Matthew Valerio states that

the intent behind the amendment was “to give the De fender General the right to refuse representation in frivolous or de minimus cases bro ught by inmates under the Public Defender Act.” In the other, Representative Margare t Flory states that the House Judiciary Committee’s “intent in passing th[e] amen dment was to relieve the Defender General’s Office from pursuing frivolous post convi ction relief matters.”

The court’s ruling does not contravene the Defende r General office’s ability to forgo taking post-conviction relief cases that it d eems frivolous upon a preliminary review. To the extent that this was the Legislature ’s intent, the court’s ruling is consistent with that intent. The court’s ruling merely require s that once an attorney has agreed to represent a prisoner, that attorney cannot withdraw upon a unilateral discovery that all of the prisoner’s claims are frivolous. In such circum stances, the attorney must provide an
Anders -type submission to explain why the claims are with out merit. This ruling is made pursuant to the court’s authority under V.R.C.P. 79 .1(f), not necessarily pursuant to § 5233(a)(3).

ORDER
For the foregoing reasons, Attorney Furlan’s motio n to reconsider is DENIED.

Dated at Burlington, Vermont, July 8, 2005.

____________/s/____________ Judge