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 petition. 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 specifying (1) petitioner’s claims, (2) law 

or argument that could conceivably support such claims, and (3) a statement that counsel 

does not consider petitioner’s claims to be warranted by existing law or by nonfrivilous 

argument for the extension, modification, or reversal 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 intent behind a recent amendment to the law 

governing rights to counsel in post-conviction relief petitions, 13 V.S.A. § 5233(a)(3), 

was contrary to the court’s ruling. 

 Part of the court’s reasoning in requiring an affidavit 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 Nov. 10, 2004) (unpublished mem.); Wool v. State, Docket No. 2004-323, 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 Sept. 9, 2004) (unpublished mem.).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 current statute is unavailing. 

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

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

the intent behind the amendment was “to give the Defender General the right to refuse 

representation in frivolous or de minimus cases brought by inmates under the Public 

Defender Act.” In the other, Representative Margaret Flory states that the House 

Judiciary Committee’s “intent in passing th[e] amendment was to relieve the Defender 

General’s Office from pursuing frivolous post conviction relief matters.” 

 The court’s ruling does not contravene the Defender General office’s ability to 

forgo taking post-conviction relief cases that it deems 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 requires 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 circumstances, the attorney must provide an 

Anders-type submission to explain why the claims are without 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 motion to reconsider is DENIED. 

 Dated at Burlington, Vermont, July 8, 2005. 

____________/s/____________ 

Judge