UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-41028

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

TRACY JOSEPH WAGNER,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

October 26, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Counsel for Tracy Joseph Wagner filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967). Counsel now asks that

he be allowed to withdraw. Wagner similarly requests that counsel

be allowed to withdraw so that he can proceed pro se on appeal.

Wagner further requests that counsel’s Anders brief be stricken.

In Anders v. California, 386 U.S. 738 (1967), the Supreme

Court held that after a conscientious examination of the record, if
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appointed counsel finds a criminal defendant’s case to be wholly

frivolous, he or she should so advise the court and request

permission to withdraw. This request must be accompanied by a

brief referring to anything in the record that might arguably

support the appeal. 386 U.S. at 744. The court further required

that a copy of the brief be furnished to the defendant so as to

allow him an opportunity to raise any issues he so chooses. Id.

The Anders decision reconciled the conflicting interests of

indigent appellants in zealous representation and the judicial

system in the efficient administration of justice.

Anders and its progeny discuss the adequacy of the brief which

the appointed counsel must file in support of the motion to

withdraw. Very little discussion exists, however, about the role

of the courts in reviewing Anders briefs and requests for

withdrawal of counsel. See, e.g., United States v. Wagner, 103

F.3d 551, 553 (7th Cir. 1996) (noting dearth of case law and

holding that “if the brief explains the nature of the case and

fully and intelligently discusses the issues that the type of case

might be expected to involve, we shall not conduct an independent

top-to-bottom review of the record in the district court to

determine whether a more resourceful or ingenious lawyer might have

found additional issues that may not be frivolous.”). 

This case presents a recurring issue: once appointed counsel

has filed an Anders brief, should the indigent defendant be allowed
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to reject his attorney, have the Anders brief stricken, and proceed

with his appeal pro se? Our circuit as well as others have

routinely allowed indigent defendants to proceed pro se after an

Anders brief has been filed and appointed counsel has been allowed

to withdraw. See, e.g., United States v. Stuttley, 103 F.3d 684

(8th Cir. 1996), cert. denied, 118 S. Ct. 83 (1997); United States

v. Henderson, 72 F.3d 463 (5th Cir. 1995); United States v. Koff,

43 F.3d 417 (9th Cir. 1994); United States v. Balzano, 916 F.2d

1273 (7th Cir. 1990). Underlying this practice is the recognition

that a criminal defendant has a constitutional and a statutory

right to represent himself on appeal. See 28 U.S.C. § 1654; Myers

v. Collins, 8 F.3d 249, 252 (5th Cir. 1993). Although the right

undoubtedly exists, we are compelled to examine closely when that

right must be exercised on appeal and the appropriate standard to

apply in order to further the principles of Anders.

By analogy we look to the right of a defendant to proceed pro

se during a criminal trial. We have noted that although a

defendant does indeed have the right to defend himself without

counsel at his trial, once the trial begins, the right to defend

ceases to be absolute. See, e.g., Moreno v. Estelle, 717 F.2d 171

(5th Cir. 1983). Thus a defendant cannot wait until the eve of

trial to exercise his right to proceed pro se for courts are wary

of last minute requests which “impede the prompt and efficient

administration of justice.” McQueen v. Blackburn, 755 F.2d 1174,
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1178 (5th Cir. 1985).

Just as the right to proceed pro se at trial is not absolute

if invoked too late, so too is the right to proceed pro se on

appeal not absolute. Much time, preparation, and careful

consideration goes into the filing of an Anders brief. Indeed, if

done correctly, Anders briefs are more difficult and time-consuming

than ordinary appellate briefs. To allow criminal defendants to

file a request to proceed pro se on appeal only after an Anders

brief has been filed would “open the door to abuse of this valuable

sixth amendment right by allowing it to be used `to obstruct the

orderly procedure in the courts or to interfere with the fair

administration of justice.’” McQueen, 755 F.2d at 1178 (quoting

Bowman v. United States, 409 F.2d 225, 226 (5th Cir. 1969)).

Once an Anders brief has been filed, the appellate court will

conduct the familiar inquiry as to whether there are no

nonfrivolous issues for appeal. Penson v. Ohio, 488 U.S. 75

(1988). The court will consider the arguments made by appointed

counsel in the Anders brief along with any issues raised by the

defendant. Anders, 386 U.S. at 744. We have done so and determine

that in this case there are no nonfrivolous issues for appeal. 

We are now faced with the second inquiry, whether Wagner

should nonetheless be allowed to proceed pro se on appeal. We

conclude that he should not. Had Wagner asserted his right to

represent himself prior to the filing of the Anders brief, he would
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have been allowed to file his own brief on appeal. See 28 U.S.C.

§ 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir. 1993). Because

he waited until after the Anders brief was filed to inform the

court that he wished to proceed pro se, Wagner’s request is too

late.

For the foregoing reasons, Wagner and his counsel’s motion to

withdraw is GRANTED. Wagner’s request that the Anders brief be

stricken is DENIED. Wagner’s motion to proceed pro se on appeal is

DENIED. As there are no meritorious issues for appeal, the appeal

is DISMISSED.

MOTIONS TO WITHDRAW GRANTED. MOTION TO PROCEED PRO SE DENIED.

APPEAL DISMISSED.