Graves v. McEwen, No. 10-17203 (9th Cir. 2013)
Annotate this CaseThe district court denied habeas corpus relief under 28 U.S.C. 2254 to petitioner but issued a certificate of appealability (COA) on five issues. The district court then appointed appellate counsel under the Criminal Justice Act, 18 U.S.C. 3006A. Counsel subsequently filed an opening brief under Anders v. California, seeking permission to withdraw. At issue on appeal was what procedure appointed counsel in a habeas appeal should follow when seeking to withdraw. The court concluded that Ninth Circuit Rule 4-1 directly addressed the issue; counsel followed the proper procedure under Rule 4-1(c)(6); and, on the merits, the certified issues provided no basis for appellate relief and the court declined to expand the COA to cover the uncertified issues identified in the Anders brief. Accordingly, the court granted the district court's judgment and granted the motion for counsel to withdraw as counsel of record for petitioner.
Court Description: Habeas Corpus. The panel affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition and granted a motion by appointed counsel to withdraw, after holding that counsel had followed the proper procedure under 9th Cir. R. 4-1(c)(6) in seeking to withdraw. The panel explained that Rule 4-1(c)(6) serves an important purpose, and that when at least one judge has found the possibility of substance in the appeal, counsel should not be allowed to abandon the appointment without carefully explaining why.
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