F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

K I N T E M. G R

A V E S , Petitioner-Appellant
,

v

.

S C O T T M C E W

E N , W arden; M A T T H E W L

. C A T E , Secretary
, California Department of Corrections and Rehabilitation,

Respondents-Appellees

. N o. 10-17203

D.C. No. 2:05-cv-01349- GEB -KJ N

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California G arland E. B urrell, Senior District J udg e, Presiding

Submitted Aug ust 13, 2013 * San F rancisco, California

F iled September 24, 2013

B efore: Susan P. Graber, Carlos T. B ea, and Andrew D. Hurwitz , Circuit J udg es.
Opinion by

J udg e Hurwitz

* T h e p an el u n a n i m o u sl y co n clu d es th is case is su itab le f o r d ecisio n

w ith o u t o ral arg u

m en t. S ee Fed . R. A pp . P . 3 4 (a)(2 ).G R A V E S V

. M C E W

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SUMMARY * *

Habeas Corpus

The p anel affirmed the district c ourt’s denial of a 28 U.S.C. § 2254 habeas corpus petition and g ranted a motion by appointed counsel to withdraw, a fter holding that counsel had followed the proper procedure under 9th Cir. R. 4 -1(c)(6) in seeking to withdraw.

The panel ex plained that Rule 4 -1(c)(6) serves an important p urpose, and that when at least one judg e has f ound the possibility of substance in the a p p eal, counsel should not be allowed to abandon the app ointment without carefully

ex p laining why

.

COUNSEL

Kathleen C. Pag e, Pag e & Pag e, Sacramento, California, for Petitioner-Appellant.

K a mala D. Harris, Attorney General of California, Michael P. F arrell, Senior Assistant Att o r n ey General, B rian G

. Smiley
, Supervising Deputy Attorney General, David Andrew E ldridg e, Deputy Attorney Ge n eral, Sacramento, California, for Respondents-Appellees.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G R A V E S V

. M C E W

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OP INION

HURW I TZ , Circuit J udg e:

The central question in this case is w hat procedure appointed counsel in a habeas appeal should follow when seeking to withdraw

. N inth Circuit Rule 4-1(c)(6) provides the answer.

I.

I n 2003
, K i n t e Graves was convicted in California state court of various felonies. The convictions were affirmed on direct a ppeal and t h e California Supreme Court denied a petition f or review. The superior court denied Graves’ state habeas c orpus petition. Graves did not seek habeas r e view in either the California Court of A p p e a l or the California Supreme Court.

Gr a v e s t hen filed a 28 U.S.C. § 2254 habeas corpus petition in the United States Distric t Court f or the Eastern District of California. The distric t c o urt denied relief, but issued a certificate of ap p e a lability (“COA”) on five issues. The court then appointed appellate counsel for G raves under the Criminal J ustice Act, 18 U.S.C. §3006A.

Counsel subsequently f

iled an opening brief in this court in the sty l e required by Anders v

. California for direct criminal appeals in which appellate c o u n s e l can f ind no viable issues. 386 U .S. 738, 744 (1967). Citing to applicable law and the record, the opening brief ex plained w hy none o f the f ive issues certified by the district court warranted h abeas relief and requested perm i ssion to withdraw. I n response, Graves filed a pro se “ D eclaration of Conflict,” request ingG R A V E S V

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that w e strike the Anders b rief and s u b stitute counsel. W e denied that request, but g a v e Grav es leave to file a p ro se supplemental brief. He failed to do so.

I n their answering brief

, the State a

ppellants arg ue that appointed counsel may not file an A nders brief in a h a beas appeal. B ecause t h e i s sue of how appointed counsel in h a b eas appeals should seek to withdraw in su c h circumstances is recurrent, we today c l a r i f y that use of the Anders procedure is required under our Circuit R u l e s , as a

co n d ition to w ithdrawal of counsel on g rounds no issues worthy of appeal ex ist.

II.

I n A nders
, the Supreme Court s p e ci f ied how appointed criminal counsel should p roceed when dete r m i n ing
, “after a conscientious ex amination,” that a client’s appeal is “wholly frivolous.” 386 U .S. at 744. I n that circumstance, the Court concluded, counsel “should so advise t h e c o urt and request permission to withdraw. That request must, however, be accompanied by a brief referring to a n y t hing in the record that mig ht a

rg uably support th e a p p eal.” Id. The r equired brief has come to be known as an A n ders brief.

The Anders brief is de s i g n e d to safeg uard a defendant’s Six th Amendment rig ht to direct a p pellate counsel. Id. at 745 (“This procedure will assure p enniless defendants the same rig hts and opportunities on appeal—as nearly as is practicable—as a r e e njoy ed by those p e rsons w h o are in a similar situation but who are ab l e t o a fford the retention o f private c ounsel.”). There is no g e n eral constitutional rig ht to counsel, however, in c o llateral postconviction r eview proceeding s. Bonin v. Calderon
, 77 F .3d 1155, 1159 (9th Cir.G R A V E S V

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1996). A ccording ly
, appellants in such p roceeding s h ave no constitutional rig ht “to insist on the Anders procedures.” Pennsylvania v. F

i n l ey , 481 U.S. 551, 557 (1987). B ut, neither the Supreme Cou r t n or a n y published Ninth Circuit opinion has considered whether
, a l thoug h not constitutionally required, filing an And

e r s b rief in a § 2254 habeas appeal is
per m i tted or required when appointed c ounsel uncovers no colorable issues.

This court has taken an inconsistent a pproach to the issue, entirely throug h memorandum dispositions. Afte r F i n ley
, a number o f unpublished decisions have accepted Anders briefs in habeas appeals, a lbeit w ithout discussing the issue the State raises here. See, e.g. , Val l e v. Hedgpeth
, 471 F

. A pp’x 650, 650 (9th Cir. 2 012); Y

oung v. M

c Grath
, 397 F

. App’x 397, 398 (9th Cir. 2010); Mauldin v. W hi t e , No. 96-55559, 1999 W L 1211478, at *1 (9th Cir. Dec. 1 6, 1999 ) ; F o u st v

. Calderon
, No. 92-55313, 1994 W L 5750, at *1 (9th Cir. J an. 7, 1994); Miles v. Vasquez
, No. 91-16355, 1993 W L 321713,
at *1 (9th Cir. A ug

. 2 4, 1993); Allen v. O r egon , No. 91- 36114, 1992 W L 209544, at *1 (9th Cir. Aug . 31, 1992). 1

B u t, other unpublished dispositions h ave ex pressly disapproved o f use of an A nders brief in an a p peal from a district c ourt’s denial of a § 2254 petition. Garduno v. Lewis
, 365 F

. App’x 820, 821–22 (9th Cir. 2 0 1 0 ); Gibbons v

. McDaniel
, No. 04-16224, 2006 W L 679985, at *1 n .1 ( 9 t h Cir. Mar. 1 5
, 2 006); Golden v

. Lewis
, No. 97-17246, 1999 W L 993650, at *2 (9th Cir. Nov. 1, 1999). These dispositions cite Finley for the proposition that the Anders fram e w o r k is

1 In a p re- Fin ley o p in io n , t h is co u rt accep ted an An d ers brief i n a h ab eas ap p eal w ith o u t di s c u s s i o n

. Myers v. Rh a y , 5 7 7 F.2 d 5 0 4
, 5 0 7 (9 th Cir. 1 9 7 8 ).G R A V E S V

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relevant only when a litig ant has a co n s titutional rig ht to counsel. Garduno
, 365 F

. App’x a t 821–22; Gibbons
, 2006 W L 679985, at *1 n.1; Golden
, 1999 W L 993650, a t * 2

. I n several cases, the panel even chastised the appointed attorney for filing an Anders b rief. See, e.g.
, Garduno , 365 F . App’x
at 821–22 (“W e remind counsel th at An ders established a prophy lactic framework that is relevant when, and only when,

a liti ga n t has a previously established constitutional rig ht to counsel.

. . . Ne v e rtheless, we have independently reviewed the record in this case and ag ree that the claims on w hich we g ranted a COA lack merit.”) (internal citations and quotation marks o mitted); Gibbons
, 2 006 W L 679985, at *1 n.1 (“W e reject Gibbons’s counsel’s attempt to c haracteriz e his brief a s

an Anders brief.

. . . D espite the deficiencie s in the opening brief, we reach the merits of this appeal because the c ertified issue has been addressed in bo t h the answering and reply briefs.”); Golden
, 1999 W L 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. S everal o f our sister circuits appear to have permitted submission of an Anders b rief in a h abeas appeal, albeit larg ely without analy sis. See, e.g ., Boyle v

. McKune
, 5 44 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); Harri s v

. Hurley
, 110 F

. App’x 597, 599 (6th Cir. 2 004). The Third Circuit has also accepted an Anders b rief i n a habeas appeal, but commented that because “[ a] ppointment o f counsel in a habeas proceeding is not con s t i t utionally mandated

. . . a motion to withdraw c omp o r ting with the r equirements o f 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 W L 52893, at * 1 (7th Cir. J a n

. 21, 2000) (also findingG R A V E S V

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that under Finley
, counsel is not required to comply with the Anders procedure in the § 2254 contex t).

A Second Circuit opinio n s t a t ed 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 R odriguez v. W eprin
, 116 F .3d 62, 6 5 (2d Cir. 1 9 9 7 ) ( accepting an Anders brief withou t discussion). I n c ontrast, the F ifth Circuit has stated that althoug h counsel served “ b y a discretionary appointment of the c ourt rather than b ecause of a declared constitut ional rig ht, it is permitted to a p p l y t he principles enunciated in Anders to determin e whether counsel should be allowed to withdraw.” Dinkins v

. Alabama
, 526 F .2d 1 268, 1269 (5th Cir. 1976).

III.

A l t h o ug h o ur prior cases and those elsewhere provide mix ed g uidance on whether an Anders br ief is p ermitted o r required in the circumstances of this c a s e , Ninth Circuit Rule 4-1 directly addresses the issue. That Rule, which is not discussed in our prior dispositi o n s, is e ntitled “Counsel in Crimina l A ppeals,” and ex pressly applies “to appeals in categ ories of cases listed i n 18 U.S.C. § 3006A.” 9th Cir. R. 4-1. Section 3006A, in turn, provides for a ppointment o f counsel when a petitioner “is seeking relief under section

. . . 2254.” 1 8 U.S.C. § 3006A(a )(2)(B )

. Habeas appeals a re therefore squarely

covered by

Rule 4-1. 2

2 A s en acted in

1 9 6 4 , § 3 00 6 A d ealt o n ly w ith d irect ap p eals. P u b

. L

. No . 8 8

- 4 55 , 7 8 Stat. 5 5 2 (1 9 6 4 ). Co n g ress ex pan d ed th e law in 1 9 8 6 to

co v er h ab eas ap p eals. P u b

. L

. N o

. 9 9

- 6 5 1, 1 0 0 S tat. 3 6 4 2 (1 9 8 6 ). T h u s,

w h en th is co u

rt ad o pted Ru le 4

- 1 in 1 9 9 5
, w e in ten d ed to in clu d e h ab eas ap p eals, alth o u g h h ab eas is n o t a civ il re m e d y (Fed eral H ab eas Man u alG R A V E S V

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Rule 4-1(c)(6) specifically deals with withdrawal o f counsel “appointed under the Criminal J u stice Act,” a nd provides that:

(6) [ I ] f after conscientious review of t he record appointed counsel b elieves the appeal i s f rivolous, o n or b efore the due date for t h e opening brief, appointed c o u n sel shall file a

s e parate motion to withdraw and an opening brief that identifies any

thing in the record that mig ht arg uably s u

pport the appeal, with citations t o the record and applicable leg al authority

. The motion and b r i e f shall be accompanied by p roof of service on defendant. See A n ders v. California
, 386 U.S. 73 8 ( 1 967), and United States v. Griffy
, 895 F .2d 561 ( 9th Cir. 1990). The cover o f the opening b rief shall state that the br i e f i s being filed pursuant to Anders v

. C a lifornia

. The filing o f a motion to withdraw as counsel along with a proposed Anders brie f s erves to vacate the previously e sta b lished briefing schedule.

To facilitate thi s Court’s independent r eview of the district court proceeding s, counsel shall d e s i g n a t e a l l a p p r o priate reporter’s transcripts
, i ncluding b ut not limited to compl e t e transcripts for the plea h earing and sentencing hearing
, and shall include the transcripts in the e x cerpts of record. Counsel a re advised to consult Circuit Rule 30-1.

§ 1 :1 06 ).G R A V E S V

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W h en an appointed a ttorney h as properly moved for leave to withdraw pursu ant to Anders and has included all app r opriate reporter’s transcripts, this Court will establish

a briefing schedule permitting the defend ant to file a pro se supplemental opening brief raising any is s u e s that defendant wishes to present. The order w ill also direct appellee b y

a date certain either to file its answering brief

or notify the Court b y letter that no answering brief will be filed.

Thus, althoug h filing a n Anders b rief is not constitutionally mandated in a habeas appeal when appointed counsel seeks to withdraw, our Rules ex pressly contemplate such a procedure. Rule 4-1 ( c ) ( 6 ) serves an important
purpose. Counsel in habeas c a ses a r e ty p ically appointed, a s here, o nly after the district court or this court g rants a COA. Under 28 U .S.C. § 2253(c)(2), a COA may issue “ only if the applicant h as made a substantial showin g o f t h e denial of a constitutional rig ht.” Thus, habeas appeals involving appointed counsel start from the pre m i s e that at least o ne Article I I I judg e has determined that “reasonable jurists could debate whether (or, for that matter, ag ree that) the petition should h ave been resolved in a d ifferent manner or that the issues p resented were adequate to deserve encourag e ment to proceed further.” M

iller-El v. Cockrell
, 537 U.S. 322, 336 (2003) (internal quotation marks omitted).

To be sure, a CO A
, often issued by a district judg e or a panel o f t h i s court without the benefit of briefing
, is not preclusive on the presence of non-frivolous appellate issues. B ut the issuance of a COA does sug g est the usefulness of an Anders bri e f

, which must parse the potential issues c ertifiedG R A V E S V

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for a ppeal and describe why they do not justify r elief. W h en at least o ne judg e has found the possibility of substance in the appeal, counsel should not be allowed to ab a n don the appointment without carefully ex p laining why

.

The Anders filing in a habeas appeal, and t h e c o urt’s review, will not precisely parallel that in a direc t a ppeal. I n the latte r contex t, an attorney may file an Anders brief only when, after re v i e w ing the entire record, he finds a n appeal “wholly frivolous.” A nders
, 386 U.S. at 744. The appellate
court must then independently review the entire record to

assure itself that this ex acting standard is met. Id. B ut in a § 2254 habeas appeal, absent further action b y this court,

a p p ellate review is limited to those issues for which a C OA has been g ranted. 9th Cir. R. 22-1(e). 3 Thus, it s h o uld normally be necessary for h a b e as appellate counsel (and ultimately the court) to c onsider o nly certified issues wh e n evaluating an Anders brief. B ut this minor distinction does
not make Rule 4-1(c)(6) inapplicable to ha b e as appeals, nor does it diminish the utility o f the Anders procedure in this
contex t.

IV.

Having determined that Graves’ appointed co u nsel followed the proper p rocedure 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 “ P etitio n ers s h all b rief o n ly issu es certif ied b y th e d istrict co u rt o r th e

co u rt of ap p eals.” 9 th Cir. R. 2 2

- 1 (e). If a p etitio n er b rief s an u n certif ied issu e, th at arg u m en t “ w ill b e co n stru ed as a m o tio n t o ex p an d t h e C OA

an d w ill b e ad d ressed b y th e m erits pan el to su ch ex ten t as it d eem s ap p ro p riate.” Id

.G R A V E S V

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appellate relief, and we d ecline to ex pand the COA to cover the uncertified issues identified in the Anders brief. 4

V.

According ly
, we AF F I RM t h e d istrict court’s judg ment and GRANT the motion o f Kathleen C. Pag e to withdraw a s counsel of record for Graves.

MOTION G RANTED, JUDG MENT AF F IRMED.

4 T h e An d ers b rief d iscu sses tw o u n certif i ed issu es. T h e b rief co rrectly

co n ced es th at Grav es d id n o t raise th e f irst issu e b elo w

. A s to th e seco n d issu e, th e b rief accu rately n otes th at trial co u n sel d id n o t p ro p erly o b j ect, d irect ap p ellate co u n sel d i d n ot raise th e issu e, an d Grav es d id n o t raise i t in h is p etitio n

.