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. e du/thir dc ir c uit_1997/159Filed 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 AppellantKathy 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 applic ation 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 Crimina l Justice Act of 1964, 18 U.S.C. § 3006A. She appropr iately briefed the matter on appeal, and the decision of t he district court was affirmed by this court with a Memorandum Opinion on March 27, 1997. Although Cone y had requested Adair to file a petition for rehearin g, Adair did not file a timely petition for rehearing. Inste ad, she sought leave to withdraw on the ground that after r eviewing this court's opinion and examining the cases relied on by this court, "it is my opinion that no further appea l on this
matter is warranted."

Adair explained that her trial schedule, which invo lved 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 t o submit a payment voucher. Counsel's motion raises what may be
seen as a tension in our local rules and our treatm ent of counsel's obligation once an appeal has been comple ted. We publish this opinion to set forth our interpreta tion of counsel's obligation.

Generally, appointed counsel in cases other than th ose in which a brief has been filed pursuant to Anders v.
California , 386 U.S. 738 (1967), will file a petition for

2rehearing. By so proceeding, counsel may seek to av ert a

potential claim of ineffective assistance of counse l or may believe that the filing of a petition for rehearing en banc is required or expected in direct criminal appeals. Th e latter would be based on a misconception, as this court, i n an effort to staunch the numerous and generally meritl ess petitions for rehearing, provides in Local Appellat e Rule
35.4:

As noted in FRAP 35, in banc hearing or rehearing o f 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 eve ry case the duty of counsel is fully discharged withou t filing a suggestion for rehearing in banc unless th e 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 c ounsel:

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 fu ll court is necessary to secure and maintain uniformit y of decisions in this court, i.e. , the panel's decision is contrary to the decision of this court or the Supre me Court in [citing specifically the case or cases], O R, 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 detaile d procedure for an attorney to withdraw at this stage of representation, these general expressions of court policy make it clear that counsel, having appropriately br iefed and argued an appeal, is not under an obligation to fil e a petition for rehearing or rehearing en banc. Nor is such a filing required under the Criminal Justice Act or t he Guide to Judiciary Policies and Procedures which implemen t the
Act. The determination whether to file rests in the sound

3professional judgment of the attorney in light of a ll

circumstances, and any motion by counsel to withdra w 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 certi orari when the defendant so requests, the Supreme Court in Aus tin 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 f ile petitions for certiorari that would present frivolo us 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 rig ht 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 rehear ing by the courts of appeals is discretionary. See LAR 35.4. It
would create a conflict with our Rules were we to r equire counsel to file a petition for rehearing if counsel believes the petition is without merit. In such a case, coun sel 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 bas is for appellants in criminal cases to seek substitute cou nsel. A motion for appointment of new counsel at this stage would unduly tax the Criminal Justice Act funds. Generall y there will be no basis for appointment of new counsel onc e 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, fo llowing

4review of the file, determine in her sound professi onal

judgment that she cannot make the statement require d in Local Appellate Rule 35.1, counsel may file a motio n on behalf of appellant to recall the mandate so that a ppellant will have an opportunity to file a timely pro se petition for rehearing should he so desire. Counsel will then ha ve fulfilled her responsibilities to her client and th e 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 andf ile a petition for rehearing in no way reflects our view that this is an appropriate case for filing a petition for re hearing 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 certiora ri 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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