NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2626

 

UNITED STATES OF AMERICA

v.

HERBERT R. HILL, Jr.,

 Appellant.

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D. C. No. 2-95-cr-00412-001)

District Judge: Hon. William H. Yohn

 

Submitted under Third Circuit LAR 34.1(a)

on July 13, 2010

Before: FUENTES, ALDISERT and ROTH, Circuit Judges

(Opinion filed: July 20, 2010)

 

O P I N I O N 

 

ROTH, Circuit Judge:

Herbert Hill appeals the revocation of his supervised release. His counsel, after

filing this appeal, moved to withdraw pursuant to Anders v. California, 386 U.S. 738
 The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction 1

under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

2

(1967). We will grant counsel’s motion to withdraw and affirm.1

Hill faced revocation of his supervised release for failing two breathalyzer tests. 

After a hearing, the District Court concluded that Hill had been drinking beer, not using

Scope, as Hill claimed, on the day of the breathalyzer test and had thereby violated both

the policy of his residential reentry program and the terms of his supervised release. 

Because the court determined that Hill had lied about using Scope, it sentenced Hill to 14

months’ imprisonment, the upper end of the Sentencing Guidelines range.

Hill appealed, and his counsel filed an Anders brief. Hill then filed a pro se brief

in support of his appeal, and the government has also filed a brief supporting counsel’s

Anders motion.

Our inquiry into the merits of counsel’s motion to withdraw focuses on two

questions. First, did counsel adequately fulfill the requirements of the Third Circuit Local

Appellate Rule 109.2(a)? United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001). 

Second, does “an independent review of the record present[] any nonfrivolous issues”? 

Id.

Third Circuit Local Appellate Rule 109.2(a) provides that, “[w]here, upon review

of the district court record, trial counsel is persuaded that the appeal presents no issue of

even arguable merit, trial counsel may file a motion to withdraw and supporting brief.” 
3

To fulfill this rule’s requirements, counsel must satisfy the Court that he “has thoroughly

examined the record in search of appealable issues” and must “explain why the issues are

frivolous.” Youla, 241 F.3d at 300. Counsel’s brief “need not raise and reject every

possible claim,” but “must meet the ‘conscientious examination’ standard set forth in

Anders.” Id.

From our review, we conclude that counsel conscientiously examined the record

and explained why Hill’s possible claims lacked even arguable merit. In addition, we

have reviewed Hill’s pro se claims. Hill raised several issues concerning the District

Court’s credibility findings: (1) the court erred in determining that the breathalyzer

machine was reliable, (2) the court failed to balance all the evidence at the hearing, (3) the

court failed to examine whether Hill’s confession to the probation officer was coerced,

and (4) the court erroneously credited the probation officer’s testimony without

considering his racial prejudice against Hill. Hill’s first three claims are without arguable

merit. The racial prejudice allegation is also without arguable merit, as it was

contradicted by Hill’s testimony that the probation officer had treated him fairly and

“helped him quite a bit.” 

Our independent review also leads us to conclude that there is no arguable merit to

Hill’s other claims of ineffective assistance of counsel, cruel and inhuman treatment, and

improper sentencing. Ineffective assistance claims, furthermore, are preferably brought

in a collateral review under 28 U.S.C. § 2255, not in a direct appeal. Massaro v. United
4

States, 538 U.S. 500, 504 (2003); United States v. Thornton, 327 F.3d 268, 271-72 (3d

Cir. 2003).

For the above stated reasons, we conclude that counsel conscientiously examined

the record and explained why Hill’s appeal is frivolous. Our independent review of the

record likewise leads us to conclude that Hill’s claims are without merit. Accordingly,

we will grant counsel’s motion to withdraw and affirm the judgment of the District Court.