FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KINTE M. GRAVES,

Petitioner-Appellant,

v.

SCOTT MCEWEN, Warden;

MATTHEW L. CATE, Secretary,

California Department of

Corrections and Rehabilitation,

Respondents-Appellees.

No. 10-17203

D.C. No.

2:05-cv-01349-

GEB-KJN

OPINION

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Senior District Judge, Presiding

Submitted August 13, 2013*

San Francisco, California

Filed September 24, 2013

Before: Susan P. Graber, Carlos T. Bea, and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Hurwitz

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 GRAVES V. MCEWEN

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s denial of a

28 U.S.C. § 2254 habeas corpus petition and granted a motion

by appointed counsel to withdraw, after holding that counsel

had followed the proper procedure under 9th Cir. R. 4-1(c)(6)

in seeking to withdraw.

The panel explained that Rule 4-1(c)(6) serves an

important purpose, and that when at least one judge has found

the possibility of substance in the appeal, counsel should not

be allowed to abandon the appointment without carefully

explaining why.

COUNSEL

Kathleen C. Page, Page & Page, Sacramento, California, for

Petitioner-Appellant.

Kamala D. Harris, Attorney General of California, Michael

P. Farrell, Senior Assistant Attorney General, Brian G.

Smiley, Supervising Deputy Attorney General, David

Andrew Eldridge, Deputy Attorney General, Sacramento,

California, for Respondents-Appellees.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
GRAVES V. MCEWEN 3

OPINION

HURWITZ, Circuit Judge:

The central question in this case is what procedure

appointed counsel in a habeas appeal should follow when

seeking to withdraw. Ninth Circuit Rule 4-1(c)(6) provides

the answer.

I.

In 2003, Kinte Graves was convicted in California state

court of various felonies. The convictions were affirmed on

direct appeal and the California Supreme Court denied a

petition for review. The superior court denied Graves’ state

habeas corpus petition. Graves did not seek habeas review in

either the California Court of Appeal or the California

Supreme Court.

Graves then filed a 28 U.S.C. § 2254 habeas corpus

petition in the United States District Court for the Eastern

District of California. The district court denied relief, but

issued a certificate of appealability (“COA”) on five issues. 

The court then appointed appellate counsel for Graves under

the Criminal Justice Act, 18 U.S.C. §3006A.

Counsel subsequently filed an opening brief in this court

in the style required by Anders v. California for direct

criminal appeals in which appellate counsel can find no

viable issues. 386 U.S. 738, 744 (1967). Citing to applicable

law and the record, the opening brief explained why none of

the five issues certified by the district court warranted habeas

relief and requested permission to withdraw. In response,

Graves filed a pro se “Declaration of Conflict,” requesting
4 GRAVES V. MCEWEN

that we strike the Anders brief and substitute counsel. We

denied that request, but gave Graves leave to file a pro se

supplemental brief. He failed to do so.

In their answering brief, the State appellants argue that

appointed counsel may not file an Anders brief in a habeas

appeal. Because the issue of how appointed counsel in

habeas appeals should seek to withdraw in such

circumstances is recurrent, we today clarify that use of the

Anders procedure is required under our Circuit Rules, as a

condition to withdrawal of counsel on grounds no issues

worthy of appeal exist.

II.

In Anders, the Supreme Court specified how appointed

criminal counsel should proceed when determining, “after a

conscientious examination,” that a client’s appeal is “wholly

frivolous.” 386 U.S. at 744. In that circumstance, the Court

concluded, counsel “should so advise the court and request

permission to withdraw. That request must, however, be

accompanied by a brief referring to anything in the record

that might arguably support the appeal.” Id. The required

brief has come to be known as an Anders brief.

The Anders brief is designed to safeguard a defendant’s

Sixth Amendment right to direct appellate counsel. Id. at 745

(“This procedure will assure penniless defendants the same

rights and opportunities on appeal—as nearly as is

practicable—as are enjoyed by those persons who are in a

similar situation but who are able to afford the retention of

private counsel.”). There is no general constitutional right to

counsel, however, in collateral postconviction review

proceedings. Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.
GRAVES V. MCEWEN 5

1996). Accordingly, appellants in such proceedings have no

constitutional right “to insist on the Anders procedures.” 

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). But,

neither the Supreme Court nor any published Ninth Circuit

opinion has considered whether, although not constitutionally

required, filing an Anders brief in a § 2254 habeas appeal is

permitted or required when appointed counsel uncovers no

colorable issues.

This court has taken an inconsistent approach to the issue,

entirely through memorandum dispositions. After Finley, a

number of unpublished decisions have accepted Anders briefs

in habeas appeals, albeit without discussing the issue the State

raises here. See, e.g., Valle v. Hedgpeth, 471 F. App’x 650,

650 (9th Cir. 2012); Young v. McGrath, 397 F. App’x 397,

398 (9th Cir. 2010); Mauldin v. White, No. 96-55559, 1999

WL 1211478, at *1 (9th Cir. Dec. 16, 1999); Foust v.

Calderon, No. 92-55313, 1994 WL 5750, at *1 (9th Cir. Jan.

7, 1994); Miles v. Vasquez, No. 91-16355, 1993 WL 321713,

at *1 (9th Cir. Aug. 24, 1993); Allen v. Oregon, No. 91-

36114, 1992 WL 209544, at *1 (9th Cir. Aug. 31, 1992).1

But, other unpublished dispositions have expressly

disapproved of use of an Anders brief in an appeal from a

district court’s denial of a § 2254 petition. Garduno v. Lewis,

365 F. App’x 820, 821–22 (9th Cir. 2010); Gibbons v.

McDaniel, No. 04-16224, 2006 WL 679985, at *1 n.1 (9th

Cir. Mar. 15, 2006); Golden v. Lewis, No. 97-17246, 1999

WL993650, at *2 (9th Cir. Nov. 1, 1999). These dispositions

cite Finley for the proposition that the Anders framework is

1

In a pre-Finley opinion, this court accepted an Anders brief in a habeas

appeal without discussion. Myers v. Rhay, 577 F.2d 504, 507 (9th Cir.

1978).
6 GRAVES V. MCEWEN

relevant only when a litigant has a constitutional right to

counsel. Garduno, 365 F. App’x at 821–22; Gibbons, 2006

WL 679985, at *1 n.1; Golden, 1999 WL 993650, at *2. In

several cases, the panel even chastised the appointed attorney

for filing an Anders brief. See, e.g., Garduno, 365 F. App’x

at 821–22 (“We remind counsel that Anders established a

prophylactic framework that is relevant when, and onlywhen,

a litigant has a previously established constitutional right to

counsel. . . . Nevertheless, we have independently reviewed

the record in this case and agree that the claims on which we

granted a COA lack merit.”) (internal citations and quotation

marks omitted); Gibbons, 2006 WL 679985, at *1 n.1 (“We

reject Gibbons’s counsel’s attempt to characterize his brief as

an Anders brief. . . . Despite the deficiencies in the opening

brief, we reach the merits of this appeal because the certified

issue has been addressed in both the answering and reply

briefs.”); Golden, 1999 WL 993650, at *2 (“[W]e reject

Golden’s Ninth-Circuit-appointed counsel’s attempt to label

her brief an Anders brief.”).

The case law elsewhere is similarly divided. Several of

our sister circuits appear to have permitted submission of an

Anders brief in a habeas appeal, albeit largely without

analysis. See, e.g., Boyle v. McKune, 544 F.3d 1132, 1140

(10th Cir. 2008); Boney v. Sec’y for the Dep’t of Corrs.,

218 F. App’x 907, 907 (11th Cir. 2007); Harris v. Hurley,

110 F. App’x 597, 599 (6th Cir. 2004). The Third Circuit has

also accepted an Anders brief in a habeas appeal, but

commented that because “[a]ppointment of counsel in a

habeas proceeding is not constitutionally mandated . . . a

motion to withdraw comporting with the requirements of

Anders is not necessary.” Turner v. Dragovich, 163 F. App’x

97, 99 (3d Cir. 2006); see also Merchel v. Page, No. 99-2155,

2000 WL 52893, at * 1 (7th Cir. Jan. 21, 2000) (also finding
GRAVES V. MCEWEN 7

that under Finley, counsel is not required to comply with the

Anders procedure in the § 2254 context).

A Second Circuit opinion stated that the Anders procedure

is not applicable in habeas cases. Love v. McCray, 413 F.3d

192, 194 & n.1 (2d Cir. 2005). But see Rodriguez v. Weprin,

116 F.3d 62, 65 (2d Cir. 1997) (accepting an Anders brief

without discussion). In contrast, the Fifth Circuit has stated

that although counsel served “by a discretionary appointment

of the court rather than because of a declared constitutional

right, it is permitted to apply the principles enunciated in

Anders to determine whether counsel should be allowed to

withdraw.” Dinkins v. Alabama, 526 F.2d 1268, 1269 (5th

Cir. 1976).

III.

Although our prior cases and those elsewhere provide

mixed guidance on whether an Anders brief is permitted or

required in the circumstances of this case, Ninth Circuit

Rule 4-1 directly addresses the issue. That Rule, which is not

discussed in our prior dispositions, is entitled “Counsel in

Criminal Appeals,” and expressly applies “to appeals in

categories of cases listed in 18 U.S.C. § 3006A.” 9th Cir.

R. 4-1. Section 3006A, in turn, provides for appointment of

counsel when a petitioner “is seeking relief under section . . .

2254.” 18 U.S.C. § 3006A(a)(2)(B). Habeas appeals are

therefore squarely covered by Rule 4-1.2

2 As enacted in 1964, § 3006A dealt only with direct appeals. Pub. L.

No. 88-455, 78 Stat. 552 (1964). Congress expanded the law in 1986 to

cover habeas appeals. Pub. L. No. 99-651, 100 Stat. 3642 (1986). Thus,

when this court adopted Rule 4-1 in 1995, we intended to include habeas

appeals, although habeas is not a civil remedy (Federal Habeas Manual
8 GRAVES V. MCEWEN

Rule 4-1(c)(6) specifically deals with withdrawal of

counsel “appointed under the Criminal Justice Act,” and

provides that:

(6) [I]f after conscientious review of the

record appointed counsel believes the appeal

is frivolous, on or before the due date for the

opening brief, appointed counsel shall file a

separate motion to withdraw and an opening

brief that identifies anything in the record that

might arguably support the appeal, with

citations to the record and applicable legal

authority. The motion and brief shall be

accompanied by proof of service on

defendant. See Anders v. California, 386 U.S.

738 (1967), and United States v. Griffy,

895 F.2d 561 (9th Cir. 1990). The cover of

the opening brief shall state that the brief is

being filed pursuant to Anders v. California. 

The filing of a motion to withdraw as counsel

along with a proposed Anders brief serves to

vacate the previously established briefing

schedule.

To facilitate this Court’s independent review

of the district court proceedings, counsel shall

designate all appropriate reporter’s transcripts,

including but not limited to complete

transcripts for the plea hearing and sentencing

hearing, and shall include the transcripts in

the excerpts of record. Counsel are advised to

consult Circuit Rule 30-1.

§ 1:106).
GRAVES V. MCEWEN 9

When an appointed attorney has properly

moved for leave to withdraw pursuant to

Anders and has included all appropriate

reporter’s transcripts, this Court will establish

a briefing schedule permitting the defendant

to file a pro se supplemental opening brief

raising any issues that defendant wishes to

present. The order will also direct appellee by

a date certain either to file its answering brief

or notify the Court by letter that no answering

brief will be filed.

Thus, although filing an Anders brief is not

constitutionally mandated in a habeas appeal when appointed

counsel seeks to withdraw, our Rules expressly contemplate

such a procedure. Rule 4-1(c)(6) serves an important

purpose. Counsel in habeas cases are typically appointed, as

here, only after the district court or this court grants a COA. 

Under 28 U.S.C. § 2253(c)(2), a COA may issue “only if the

applicant has made a substantial showing of the denial of a

constitutional right.” Thus, habeas appeals involving

appointed counsel start from the premise that at least one

Article IIIjudge has determined that “reasonable jurists could

debate whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003) (internal quotation marks omitted).

To be sure, a COA, often issued by a district judge or a

panel of this court without the benefit of briefing, is not

preclusive on the presence of non-frivolous appellate issues. 

But the issuance of a COA does suggest the usefulness of an

Anders brief, which must parse the potential issues certified
10 GRAVES V. MCEWEN

for appeal and describe why they do not justify relief. When

at least one judge has found the possibility of substance in the

appeal, counsel should not be allowed to abandon the

appointment without carefully explaining why.

The Anders filing in a habeas appeal, and the court’s

review, will not precisely parallel that in a direct appeal. In

the latter context, an attorney may file an Anders brief only

when, after reviewing the entire record, he finds an appeal

“wholly frivolous.” Anders, 386 U.S. at 744. The appellate

court must then independently review the entire record to

assure itself that this exacting standard is met. Id. But in a

§ 2254 habeas appeal, absent further action by this court,

appellate review is limited to those issues for which a COA

has been granted. 9th Cir. R. 22-1(e).3 Thus, it should

normally be necessary for habeas appellate counsel (and

ultimately the court) to consider only certified issues when

evaluating an Anders brief. But this minor distinction does

not make Rule 4-1(c)(6) inapplicable to habeas appeals, nor

does it diminish the utility of the Anders procedure in this

context.

IV.

Having determined that Graves’ appointed counsel

followed the proper procedure under Rule 4-1(c)(6), we turn

to the merits in this case. Our review of the briefing and the

record discloses that the certified issues provide no basis for

3

“Petitioners shall brief only issues certified by the district court or the

court of appeals.” 9th Cir. R. 22-1(e). If a petitioner briefs an uncertified

issue, that argument “will be construed as a motion to expand the COA

and will be addressed by the merits panel to such extent as it deems

appropriate.” Id.
GRAVES V. MCEWEN 11

appellate relief, and we decline to expand the COA to cover

the uncertified issues identified in the Anders brief.4

V.

Accordingly, we AFFIRM the district court’s judgment

and GRANT the motion of Kathleen C. Page to withdraw as

counsel of record for Graves.

MOTION GRANTED, JUDGMENT AFFIRMED.

4 The Anders brief discusses two uncertified issues. The brief correctly

concedes that Graves did not raise the first issue below. As to the second

issue, the brief accurately notes that trial counsel did not properly object,

direct appellate counsel did not raise the issue, and Graves did not raise it

in his petition.