United States v. Wagner, 158 F.3d 901 (5th Cir. 1998). · Go Syfert
United States v. Wagner, 158 F.3d 901 (5th Cir. 1998). Cases Citing This Book View Copy Cite
Quick Summary

A request to proceed pro se on appeal is untimely if made after appointed counsel has filed an Anders brief.

After appointed counsel filed an Anders brief and requested to withdraw, a defendant requested to proceed pro se on appeal and asked that the brief be stricken. The court must determine whether a defendant may exercise the right to self-representation after an Anders brief has already been filed. Although defendants have a constitutional and statutory right to represent themselves, this right is not absolute and may be limited to ensure the efficient administration of justice. Because the defendant waited until after the filing of the Anders brief to request to proceed pro se, the request is untimely. The court grants the motion to withdraw but denies the requests to strike the brief and to proceed pro se.

475 citation events (470 in the last 25 years) across 4 distinct courts.
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At page 902 Allowing defendants to proceed pro se after Anders brief438 citing casesstating that once counsel’s withdrawal brief is filed, a motion to proceed pro se is untimely and should be denied1 citing court put it this way · 223 listed here
  • United States v. Dugas, No. 26-40005 (5th Cir. Aug. 4, 2026).unpublished
    Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2
  • United States v. Silva-Martinez, No. 24-20526 (5th Cir. June 18, 2025).unpublished
    States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
  • United States v. Fernandez, No. 24-20511 (5th Cir. May 12, 2025).unpublished
    United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2
  • United States v. Anglin, No. 24-10567 (5th Cir. Mar. 24, 2025).unpublished
    Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
  • United States v. Gonzalez-Urbina, No. 23-10898 (5th Cir. Aug. 7, 2024).unpublished
    United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
  • United States v. Campos, No. 23-11033 (5th Cir. July 15, 2024).unpublished
    United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
  • United States v. Guzman, No. 22-10448 (5th Cir. June 5, 2023).unpublished
    Cf. United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
  • United States v. Sah, No. 21-10791 (5th Cir. Mar. 7, 2022).unpublished
    See Anders, 386 U.S. at 744 ; United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2
  • United States v. Ford, No. 20-40084 (5th Cir. May 3, 2021).unpublished
    United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998). 2
  • United States v. Alvin Watts, III, No. 19-30407 (5th Cir. Aug. 14, 2020).unpublished 2 cites
    United States v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998).
Show 213 more citing cases
At page 901 rejecting defendant’s motion to proceed pro se after his counsel filed an Anders brief and moved to withdraw1 citing case1 citing court put it this way
  • United States v. Gary McDuff, 639 F. App'x 978 (5th Cir. 2016).unpublished
    (rejecting defendant’s motion to proceed pro se after his counsel filed an Anders brief and moved to withdraw)
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Tracy Joseph WAGNER, Defendant-Appellant
97-41028.
Court of Appeals for the Fifth Circuit.
Oct 26, 1998.
Published opinion
158 F.3d 901
1998 U.S. App. LEXIS 27674
1998 WL 744000
Dane H. Smith, Tyler, TX, for Plaintiff-Appellee., Wayne R. Dickey, Tyler, TX, for Defendant-Appellant.
Jolly, Benavides, Parker.
Cited by 469 opinions  |  Published
ROBERT M. PARKER, Circuit Judge:

Counsel for Tracy Joseph Wagner filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel now asks that he be allowed to withdraw. Wagner similarly requests that counsel be allowed to withdraw so that he can proceed pro se on appeal. Wagner further requests that counsel’s Anders brief be stricken.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court held that after a conscientious examination of the record, if appointed counsel finds a criminal defendant’s case to be wholly frivolous, he or she should so advise the court and request permission to withdraw. This request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The court further required that a copy of the brief be furnished to the defendant so as to allow him an oppor[*902] tunity to raise any issues he so chooses. Id. The Anders decision reconciled the conflicting interests of indigent appellants in zealous representation and the judicial system in the efficient administration of justice.

Anders and its progeny discuss the adequacy of the brief which the appointed counsel must file in support of the motion to withdraw. Very little discussion exists, however, about the role of the courts in reviewing Anders briefs and requests for withdrawal of counsel. See, e.g., United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996) (noting dearth of case law and holding that “if the brief explains the nature of the ease and fully and intelligently discusses the issues that the type of case might be expected to involve, we shall not conduct an independent top-to-bottom review of the record in the district court to determine whether a more resourceful or ingenious lawyer might have found additional issues that may not be frivolous.”).

This case presents a recurring issue: once appointed counsel has filed an Anders brief, should the indigent defendant be allowed to reject his attorney, have the Anders brief stricken, and proceed with his appeal pro se? Our circuit as well as others have routinely allowed indigent defendants to proceed pro se after an Anders brief has been filed and appointed counsel has been allowed to withdraw. See, e.g., United States v. Stuttley, 103 F.3d 684 (8th Cir.1996), cert. denied, — U.S. -, 118 S.Ct. 83, 139 L.Ed.2d 40 (1997); United States v. Henderson, 72 F.3d 463 (5th Cir.1995); United States v. Koff, 43 F.3d 417 (9th Cir.1994); United States v. Balzano, 916 F.2d 1273 (7th Cir.1990). Underlying this practice is the recognition that a criminal defendant has a constitutional and a statutory right to represent himself on appeal. See 28 U.S.C. § 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993). Although the right undoubtedly exists, we are compelled to examine closely when that right must be exercised on appeal and the appropriate standard to apply in order to further the principles of Anders.

By analogy we look to the right of a defendant to proceed pro se during a criminal trial. We have noted that although a defendant does indeed have the right to defend himself without counsel at his trial, once the trial begins, the right to defend ceases to be absolute. See, e.g., Moreno v. Estelle, 717 F.2d 171 (5th Cir.1983). Thus a defendant cannot wait until the eve of trial to exercise his right to proceed pro se for courts are wary of last minute requests which “impede the prompt and efficient administration of justice.” McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.1985).

Just as the right to proceed pro se at trial is not absolute if invoked too late, so too is the right to proceed pro se on appeal not absolute. Much time, preparation, and careful consideration goes into the filing of an Anders brief. Indeed, if done correctly, An-ders briefs are more difficult and time-consuming than ordinary appellate briefs. To allow criminal defendants to file a request to proceed pro se on appeal only after an An-ders brief has been filed would “open the door to abuse of this valuable sixth amendment right by allowing it to be used ‘to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.’ ” McQueen, 755 F.2d at 1178 (quoting Bowman v. United States, 409 F.2d 225, 226 (5th Cir.1969)).

Once an Anders brief has been filed, the appellate court will conduct the familiar inquiry as to whether there are no nonfrivolous issues for appeal. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). The court will consider the arguments made by appointed counsel in the Anders brief along with any issues raised by the defendant. Anders, 386 U.S. at 744, 87 S.Ct. 1396. We have done so and determine that in this ease there are no nonfrivolous issues for appeal.

We are now faced with the second inquiry, whether Wagner should nonetheless be allowed to proceed pro se on appeal. We conclude that he should not. Had Wagner asserted his right to represent himself prior to the filing of the Anders brief, he would have been allowed to file his own brief on appeal. See 28 U.S.C. § 1654; Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993). Because he waited until after the Anders brief[*903] was filed to inform the court that he wished to proceed pro se, Wagner’s request is too late.

For the foregoing reasons, Wagner and his counsel’s motion to withdraw is GRANTED. Wagner’s request that the Anders brief be stricken is DENIED. Wagner’s motion to proceed pro se on appeal is DENIED. As there are no meritorious issues for appeal, the appeal is DISMISSED.

MOTIONS TO WITHDRAW GRANTED. MOTION TO PROCEED PRO SE DENIED. APPEAL DISMISSED.