Austin v. United States, 513 U.S. 5 (1994). · Go Syfert
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Austin v. United States, 513 U.S. 5 (1994). Cases Citing This Book View Copy Cite
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cited 4× by 1 distinct case, last quoted 2010 · …though indigent defendants pursuing appeals as of right have a constitutional right to a brief filed on their behalf by an attorney, that right does not extend to forums for discretionary review. at p. 8 ≈ altered
cited 3× by 1 distinct case, last quoted 1998 · …indigent defendants pursuing appeals have a 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).... ⚠ not in text
143 citation events (78 in the last 25 years) across 28 distinct courts.
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Fernandez (8×) also: Cited as authority (quoted), Cited "see"
10th Cir. · 2010 · signal: see · quote attribution · 4 verbatim quotes · confidence high
though indigent defendants pursuing appeals as of right have a constitutional right to a brief filed on their behalf by an attorney, that right does not extend to forums for discretionary review.
examined Cited as authority (quoted) United States v. Spence (3×)
S.D. Ga. · 1998 · signal: see · quote attribution · 3 verbatim quotes · confidence high
indigent defendants pursuing appeals have a 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)....
discussed Cited as authority (rule) Stull v. Smith
N.D. Cal. · 2024 · confidence medium
The state’s highest court must “be alerted to the fact that the 4 prisoners are asserting claims under the United States Constitution,” Duncan v. Henry, 513 U.S. 5 364, 368 (1995), and must be given an opportunity to rule on the claims even if review is 6 discretionary, see O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one 7 complete round of the State’s established appellate review process.”).
discussed Cited as authority (rule) Hanton v. United States
W.D.N.C. · 2021 · confidence medium
While “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 (1967), that right does not extend to forums for discretionary review.” Austin v. United States, 513 U.S. 5, 8 (1994).
cited Cited as authority (rule) Charles Ahumada v. United States
8th Cir. · 2021 · confidence medium
Austin v. United States, 513 U.S. 5, 8 (1994) (per curiam), citing Ross, 417 U.S. at 616-17 .
discussed Cited as authority (rule) Hasmukh Patel, M.D. v. Hamilton Medical Center, Inc.
11th Cir. · 2020 · confidence medium
And so “[i]f a judgment has become moot while awaiting review, [we] may not consider its merits, but may make such disposition of the whole case as justice may require.” Bancorp, 513 U.S. at 21 (alteration adopted) (quoting Walling v. James V.
discussed Cited as authority (rule) Faircloth v. United States
M.D. Fla. · 2020 · confidence medium
Ross v. Moffitt, 417 U.S. 600, 617-18 (1974) (appointment of counsel for indigent state defendants not required for applications for writ of certiorari with the Supreme Court); Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)(“Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further.”); Austin v. United States, 513 U.S. 5, 8 (1994).
discussed Cited as authority (rule) Taylor v. United States
2d Cir. · 2016 · confidence medium
Just as counsel may move to be relieved from filing a frivolous direct appeal, Anders v. California, 386 U.S. 738, 744 (1967), or a frivolous petition for certiorari, Austin v. 9 United States, 513 U.S. 5, 8 (1994) (per curiam), counsel may also move to be relieved from filing a frivolous petition for rehearing or rehearing en banc.
discussed Cited as authority (rule) Pena v. United States
2d Cir. · 2008 · confidence medium
The Supreme Court has subsequently required Courts of Appeals to revise their CJA plans to “allow for relieving a lawyer of the duty to file a petition for certiorari if the petition would present only frivolous claims.” Austin v. United States, 513 U.S. 5, 8 (1994). 7
discussed Cited as authority (rule) United States v. Coney
3rd Cir. · 1997 · confidence medium
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.
cited Cited "see" Elliott v. McDaniel
D. Nev. · 2021 · signal: see · confidence high
See Schlup v. Delo, 513 U.S. 5 298, 330 (1995). 6 Grounds 8 and 9 are essentially intertwined.
cited Cited "see" Daniel Wayne Grogan v. Curva
C.D. Cal. · 2020 · signal: see · confidence high
See Duncan v. Henry, 513 U.S. 5 364, 365 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en 6 banc).
cited Cited "see" United States v. David Givhan
6th Cir. · 2018 · signal: see · confidence high
See Austin v. United States, 513 U.S. 5, 8 (1994) (per curiam).
examined Cited "see" United States v. Rodriguez (3×)
10th Cir. · 2014 · signal: see · confidence high
See Austin v. United States, 513 U.S. 5, 8 , 115 S.Ct. 380 , 130 L.Ed.2d 219 (1994) (per curiam) (holding that there is no constitutional right to counsel in forums offering discretionary review); Wainwright v. Torna, 455 U.S. 586, 587 , 102 S.Ct. 1300 , 71 L.Ed.2d 475 (1982) (per curiam) (holding that because a habeas petitioner had no right to counsel in appealing to the state supreme court, an attorney's failure to timely appeal could not have resulted in denial of effective assistance of counsel). 10 .
examined Cited "see" United States v. Christopher Cannon (3×)
7th Cir. · 2014 · signal: see · confidence high
See Austin v. United States, 513 U.S. 5, 5-6 , 115 S.Ct. 380 , 130 L.Ed.2d 219 (1994).
examined Cited "see" United States v. Shipp (3×)
N.D. Okla. · 2008 · signal: see · confidence high
See Austin v. United States, 513 U.S. 5, 8 , 115 S.Ct. 380 , 130 L.Ed.2d 219 (1994) (even though indigent defendants pursuing appeals as of right have a constitutional right to a brief filed on their behalf by an attorney, that right does not extend to forums for discretionary review).
examined Cited "see" Van Harris v. United States (3×)
S.D.W. Va · 2007 · signal: see · confidence high
See Austin v. United States, 513 U.S. 5, 8 , 115 S.Ct. 380 , 130 L.Ed.2d 219 (1994); Proffitt v. United States, 549 F.2d 910 (4th Cir.1976), cert. denied, 429 U.S. 1076 , 97 S.Ct. 818 , 50 L.Ed.2d 795 (1977).
discussed Cited "see, e.g." People v. Delgadillo
Cal. · 2023 · signal: see also · confidence low
A State’s procedure provides such review so long as it reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” (Robbins, at pp. 276–277.) The high court concluded that “the Wende procedure reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” (Id. at pp. 278–279.) Specifically, Wende provides at least two tiers of review and “ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation…
discussed Cited "see, e.g." People v. Delgadillo
Cal. · 2022 · signal: see also · confidence low
A State’s procedure provides such review so long as it reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” (Robbins, at pp. 276–277.) The high court concluded that “the Wende procedure reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” (Id. at pp. 278–279.) Specifically, Wende provides at least two tiers of review and “ensures that a trained legal eye has searched the record for arguable issues and assists the reviewing court in its own evaluation…
examined Cited "see, e.g." In re Taijha H.-B. (3×)
Conn. · 2019 · signal: see, e.g. · confidence low
See, e.g., Austin v. United States, 513 U.S. 5, 8 , 115 S. Ct. 380 , 130 L.
discussed Cited "see, e.g." Doty v. Uttecht
E.D. Wash. · 2019 · signal: see also · confidence low
See 20 id.; 28 U.S.C. § 2254 (c). 1 To meet the exhaustion requirement, the petitioner must have “fairly 2 present[ed] his claim in each appropriate state court (including a state supreme court 3 with powers of discretionary review), thereby alerting that court to the federal 4 nature of the claim.” Baldwin, 541 U.S. at 29 ; see also Duncan v. Henry, 513 U.S. 5 364 , 365–66 (1995).
discussed Cited "see, e.g." Messner v. Uttecht
E.D. Wash. · 2019 · signal: see also · confidence low
See 20 id.; 28 U.S.C. § 2254 (c). 1 To meet the exhaustion requirement, the petitioner must have “fairly 2 present[ed] his claim in each appropriate state court (including a state supreme court 3 with powers of discretionary review), thereby alerting that court to the federal 4 nature of the claim.” Baldwin, 541 U.S. at 29 ; see also Duncan v. Henry, 513 U.S. 5 364 , 365–66 (1995).
examined Cited "see, e.g." State v. Francis (3×)
Conn. · 2016 · signal: see also · confidence low
That court has concluded that, because there is no underlying constitutional right to appointed counsel in postconviction proceedings, criminal defendants have "no constitutional right to insist on the Anders [procedure] which [was] designed solely to protect that underlying constitutional right." Id., at 557 , 107 S.Ct. 1990 ; see also Austin v. United States, 513 U.S. 5 , 8, 115 S.Ct. 380 , 130 L.Ed.2d 219 (1994) (right to Anders procedure "does not extend to forums for discretionary review").
examined Cited "see, e.g." United States v. Morales (3×)
3rd Cir. · 2004 · signal: see also · confidence low
See Third Circuit L.A.R. 109.2(b) and (c); see also Austin v. United States, 513 U.S. 5 , 115 S.Ct. 380 , 130 L.Ed.2d 219 (1994). 1 .
discussed Cited "see, e.g." Los Angeles County Department of Children's Services v. Gregory C. (2×)
Cal. · 1996 · signal: see also · confidence low
(Pennsylvania v. Finley, supra, 481 U.S. at pp. 554-559 [95 L.Ed.2d at pp. 545-549]; see Anders v. California, supra, 386 U.S. at pp. 739, 741-742, 744-745 [18 L.Ed.2d at pp. 495, 496-497, 498-499]; see also Austin v. U.S., supra, 513 U.S. at p._ [ 130 L.Ed.2d at p. 223 , 115 S.Ct. at p. 381 ].) They do not extend to an appeal, even on direct review, that is discretionary.
examined Cited "see, e.g." In Re Sade C. (3×)
Cal. · 1996 · signal: see also · confidence low
In so doing, it recognized that, under Anders , "indigent [criminal] defendants pursuing appeals as of right have a constitutional right to a brief filed on their behalf by an attorney...." ( Id. at p. ___ [ 130 L.Ed.2d at p. 223 , 115 S.Ct. at p. 381 ].) But it reaffirmed that "that right does not extend to forums for discretionary review." ( Id. at p. ___ [ 130 L.Ed.2d at p. 223 , 115 S.Ct. at p. 381 ].) Our consideration of Anders in the light of its antecedents and progeny yields the following conclusions. (3) First, Anders establishes certain procedures for state appellate courts that are…
Retrieving the full opinion text from the archive…
Austin
v.
United States
Supreme Court of the United States.
Oct 31, 1994.
513 U.S. 5
Per Curiam.
Cited by 87 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: bottom 92%
Citer courts: Tenth Circuit (3) · S.D. Georgia (3)
Per Curiam.

Anthony Austin pleaded guilty to possession of crack cocaine with intent to distribute and was sentenced to 151 months’ imprisonment. On appeal to the Fourth Circuit, Thomas Cochran, who had been appointed as Austin’s counsel pursuant to the Criminal Justice Act of 1964, 18 U. S. C. § 3006A, submitted a brief in accordance with Anders v. California, 386 U. S. 738 (1967). That brief raised the issue of[*6] sentence computation, but concluded that no meritorious issues existed for appeal. The Fourth Circuit affirmed Austin’s conviction and sentence. Cochran then informed Austin of the right to petition for certiorari. Austin responded with a request to file a petition on his behalf. In advance of the deadline for filing the petition, Cochran applied to this Court for leave to withdraw as counsel. We grant his application.

The Criminal Justice Act directs each district court, with the approval of the judicial council of the Circuit, to implement “a plan for furnishing representation for any person financially unable to obtain adequate representation.” 18 U. S. C. § 3006A(a). The Fourth Circuit plan contains a provision governing the duration of service by appointed counsel. Specifically, it provides:

“2. Appellate Counsel. Every attorney, including retained counsel, who represents a defendant in this court shall continue to represent his client after termination of the appeal unless relieved of further responsibility by the Supreme Court. Where counsel has not been relieved:
“If the judgment of this court is adverse to the defendant, counsel shall inform the defendant, in writing, of his right to petition the Supreme Court for a writ of certio-rari. If the defendant, in writing, so requests, counsel shall prepare and file a timely petition for such a writ and transmit a copy to the defendant. Thereafter, unless otherwise instructed by the Supreme Court or its clerk, or unless any applicable rule, order or plan of the Supreme Court shall otherwise provide, counsel shall take whatever further steps are necessary to protect the rights of the defendant, until the petition is granted or denied.” 4th Circuit Rules App. II, Rule V.2.

Cochran argues that the Rule subjects him to conflicting obligations. On the one hand, the Rule imposes a mandatory duty to file a petition even if the legal arguments are frivo[*7] lous. On the other hand, this Court’s Rule 42.2 allows an award of damages or costs against him if he were to file a frivolous petition.

As a matter of pure text, Cochran’s interpretation is correct. The Fourth Circuit Rule does require the actions of appointed counsel to comply with this Court’s Rules, but only after the filing of a petition for certiorari. The Rule imposes a very clear mandate to file petitions at the client’s request, evidenced by the command “shall prepare and file.” The Fourth Circuit keeps plenty of company in mandating representation through the certiorari process, even when it may run counter to our Rules. [1] Although the Fourth Circuit Rule provides a mechanism to seek relief from this obligation, Cochran is the first attorney to move for such relief, [2] indicating that counsel feel encouraged or perhaps bound by these Rules to file petitions that rest on frivolous claims. These Circuit Rules may explain, in part, the dramatically increased number of petitions for certiorari on direct appeal from federal courts of appeals filed by persons in forma pauperis. [3]

[*8] Consistent with the Criminal Justice Act, we have provided by Rule for the payment of counsel appointed by this Court to represent certain indigent defendants. See Rule 39.7 (“In a case in which certiorari has been granted or jurisdiction has been noted or postponed, this Court may appoint counsel to represent a party financially unable to afford an attorney to the extent authorized by the Criminal Justice Act of 1964, as amended, 18 U. S. C. § 3006A”). But nothing in the Criminal Justice Act compels counsel to file papers in contravention of this Court’s Rules against frivolous filings. And though indigent defendants pursuing appeals as of right have a constitutional right to a brief filed on their behalf by an attorney, Anders v. California, supra, that right does not extend to forums for discretionary review. Ross v. Moffitt, 417 U. S. 600, 616-617 (1974). Our Rules dealing with the grounds for granting certiorari, and penalizing frivolous filings, apply equally to petitioners using appointed or retained counsel. We believe that the Circuit councils should, if necessary, revise their Criminal Justice Plans so that they do not create any conflict with our Rules. The plan should allow for relieving a lawyer of the duty to file a petition for certiorari if the petition would present only frivolous claims.

A few of the Circuits have adopted plans that accommodate this Court’s Rules in some fashion. For instance, the First Circuit only requires appointed counsel to continue representation at the Supreme Court level if “the person requests it and there are reasonable grounds for counsel properly to do so.” 1st Circuit Rule 46.5(c). If counsel determines a petition would be frivolous, he must inform the First Circuit and request leave to withdraw. See also 2d Circuit Rules App. A, Rule III.5. The Sixth Circuit takes a different tack, insulating counsel from violation of its Rules (though not, of course, from violation of our Rules) so long as he proceeds according to his best professional judgment, without resorting to the approval of the appellate court. Its recently amended Rule states: “Court appointed counsel is[*9] obligated to file a petition for a writ of certiorari in the Supreme Court of the United States if the client requests that such a review be sought and, in counsel’s considered judgment, there are grounds for seeking Supreme Court review.” 6th Circuit Rule 12(f) (emphasis in original). We do not believe that the Criminal Justice Act compels either approach. From an administrative point of view, however, we think a plan requiring approval of the court of appeals is preferable, because attorneys are more likely to avail themselves of this avenue for relief if they have the endorsement of the court to back up their own judgment.

1

See D. C. Circuit Rules App. VIII, Rule IV (“The duties of representation by counsel on appeal, where the appeal has been unsuccessful, shall extend to advising the party of the right to file a petition for writ of certiorari .... If the party so requests, counsel shall prepare and file such a petition”) (emphasis added); 3d Circuit Rules Addendum B, Rule III.6 (same); 5th Circuit Rules App. C, Rule 4 (same); 7th Circuit Rules App. II, Rule V.3 (same); 8th Circuit Rules App. Rule V (same); 9th Circuit Rules App. A, §4(c) (same); 10th Circuit Rules Addendum I, Rule II.D (same); 11th Circuit Rules Addendum 4(f)(4) (same).

2

Since this Court received Cochran’s motion, another attorney has filed a petition for certiorari raising the same issue. Anderson v. United States, No. 94-5958.

3

For the October 1983 Term, we received 523 petitions for certiorari on direct review in criminal cases from informa pauperis petitioners in federal courts. That number increased fourfold by the October 1993 Term with 2,053 petitions. That increase stands in contrast with the increase in criminal petitions on direct review from state courts — an increase of only 50% in that same 10-year period.