1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-16-1997

United States v. Coney

Precedential or Non-Precedential:

Docket 96-1740

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Recommended Citation

"United States v. Coney" (1997). 1997 Decisions. Paper 159.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/159
Filed July 16, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 96-1740 

UNITED STATES OF AMERICA 

v. 

ERNEST CONEY, 

a/k/a "Jerome" 

Ernest Coney, 

Appellant

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Crim. No. 92-cr-00017-4) 

Submitted On Motion Pursuant to Third 

Circuit LAR 34.1(a) May 20, 1997 

Before: SLOVITER, Chief Judge, STAPLETON and 

ALDISERT, Circuit Judges

(Filed July 16, 1997) 

Christine M. Adair 

Philadelphia, PA 19102 

 Attorney for Appellant 
Kathy A. Stark 

Office of United States Attorney 

Philadelphia, PA 19106 

 Attorney for Appellee 

OPINION OF THE COURT 

SLOVITER, Chief Judge. 

Christine Adair, counsel for appellant Ernest Coney, has 

moved for leave to withdraw from her representation of the 

appellant. The motion raises an issue of the application of 

our local appellate rules. 

Coney was convicted and sentenced as a result of a 

violation of probation. After he filed a pro se petition for 

appeal, Adair, who represented him in the district court, 

was appointed by this court pursuant to the Criminal 

Justice Act of 1964, 18 U.S.C. § 3006A. She appropriately 

briefed the matter on appeal, and the decision of the 

district court was affirmed by this court with a 

Memorandum Opinion on March 27, 1997. Although Coney 

had requested Adair to file a petition for rehearing, Adair 

did not file a timely petition for rehearing. Instead, she 

sought leave to withdraw on the ground that after reviewing 

this court's opinion and examining the cases relied on by 

this court, "it is my opinion that no further appeal on this 

matter is warranted." 

Adair explained that her trial schedule, which involved 

several homicide cases, prevented her from filing a timely 

letter with the Clerk's Office and that in addition to moving 

for leave to withdraw as counsel she sought leave to submit 

a payment voucher. Counsel's motion raises what may be 

seen as a tension in our local rules and our treatment of 

counsel's obligation once an appeal has been completed. 

We publish this opinion to set forth our interpretation of 

counsel's obligation. 

Generally, appointed counsel in cases other than those in 

which a brief has been filed pursuant to Anders v.

California, 386 U.S. 738 (1967), will file a petition for 

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rehearing. By so proceeding, counsel may seek to avert a 

potential claim of ineffective assistance of counsel or may 

believe that the filing of a petition for rehearing en banc is 

required or expected in direct criminal appeals. The latter 

would be based on a misconception, as this court, in an 

effort to staunch the numerous and generally meritless 

petitions for rehearing, provides in Local Appellate Rule 

35.4: 

As noted in FRAP 35, in banc hearing or rehearing of 

appeals is not favored. Counsel have a duty to the 

Court commensurate with that owed their clients to 

read with attention and observe with restraint the 

Required Statement for Rehearing in Banc set forth in 

3rd Cir. LAR 35.1. Counsel are reminded that in every 

case the duty of counsel is fully discharged without 

filing a suggestion for rehearing in banc unless the 

case meets the rigorous requirements of FRAP 35 and

3rd Cir. LAR 35.1. 

Local Appellate Rule 35.1 provides that a petition for 

rehearing must contain the following statement by counsel: 

I express a belief, based on a reasoned and studied

professional judgment, that the panel decision is 

contrary to decisions of the United States Court of

Appeals for the Third Circuit or the Supreme Court of 

the United States, and that consideration by the full 

court is necessary to secure and maintain uniformity of 

decisions in this court, i.e., the panel's decision is 

contrary to the decision of this court or the Supreme 

Court in [citing specifically the case or cases], OR, that 

this appeal involves a question of exceptional 

importance, i.e. [set forth in one sentence]. 

Although the local rules do not set forth a detailed 

procedure for an attorney to withdraw at this stage of 

representation, these general expressions of court policy 

make it clear that counsel, having appropriately briefed and 

argued an appeal, is not under an obligation to file a 

petition for rehearing or rehearing en banc. Nor is such a 

filing required under the Criminal Justice Act or the Guide 

to Judiciary Policies and Procedures which implement the 

Act. The determination whether to file rests in the sound 

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professional judgment of the attorney in light of all 

circumstances, and any motion by counsel to withdraw is 

treated on a case-by-case basis. 

In considering whether an attorney for an indigent 

defendant has the duty to file a petition for certiorari when 

the defendant so requests, the Supreme Court in Austin v.

United States, 513 U.S. 5, 8 (1994), directed the Circuit 

Judicial Councils to revise their Criminal Justice Plans if 

necessary so that counsel would not be obliged to file 

petitions for certiorari that would present frivolous claims 

in violation of Supreme Court rules. It stated: 

[T]hough indigent defendants pursuing appeals as of

right have a constitutional right to a brief filed on their 

behalf by an attorney, Anders v. California, 386 U.S. 

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), that right 

does not extend to forums for discretionary review.

Ross v. Moffitt, 417 U.S. 600, 616-617, 94 S.Ct. 2437, 

2446-47, 41 L.Ed.2d 341 (1974). 

Id.

Unlike the mandatory jurisdiction of the courts of 

appeals in a direct criminal appeal, en banc rehearing by 

the courts of appeals is discretionary. See LAR 35.4. It 

would create a conflict with our Rules were we to require 

counsel to file a petition for rehearing if counsel believes 

the petition is without merit. In such a case, counsel 

should file a petition for leave to withdraw, with notice to 

the appellant that s/he may file a pro se petition for 

rehearing. 

This, of course, should not be interpreted as a basis for 

appellants in criminal cases to seek substitute counsel. A 

motion for appointment of new counsel at this stage would 

unduly tax the Criminal Justice Act funds. Generally there 

will be no basis for appointment of new counsel once the 

original counsel has withdrawn following completion of the 

appeal on the ground that further proceedings would be 

frivolous. 

Because counsel in this case may not have fully 

understood the appropriate procedure, we will deny the 

motion to withdraw at this time. Should counsel, following 

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review of the file, determine in her sound professional 

judgment that she cannot make the statement required in 

Local Appellate Rule 35.1, counsel may file a motion on 

behalf of appellant to recall the mandate so that appellant 

will have an opportunity to file a timely pro se petition for 

rehearing should he so desire. Counsel will then have 

fulfilled her responsibilities to her client and the court, and 

may then renew her motion for leave to withdraw, of course 

providing notice to the appellant. 

Our willingness to allow counsel to reconsider andfile a 

petition for rehearing in no way reflects our view that this 

is an appropriate case for filing a petition for rehearing or 

a petition for a writ of certiorari. Supreme Court Rule 42.2 

allows an award of damages or costs against counsel or her 

client if a frivolous petition for writ of certiorari is filed. 

Adair's motion for leave to withdraw as counsel is denied 

without prejudice. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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