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Graves v. McEwen

United States Court of Appeals, Ninth Circuit

September 24, 2013

Kinte M. GRAVES, Petitioner-Appellant,
v.
Scott McEWEN, Warden; Matthew L. Cate, Secretary, California Department of Corrections and Rehabilitation, Respondents-Appellees.

Submitted Aug. 13, 2013 [*].

Page 877

Kathleen C. Page, Page & Page, Sacramento, CA, for Petitioner-Appellant.

Kamala D. Harris, Attorney General of California, Michael P. Farrell, Senior Assistant Attorney General, Brian G. Smiley, Supervising Deputy Attorney General, David Andrew Eldridge, Deputy Attorney General, Sacramento, CA, for Respondents-Appellees.

Appeal from the United States District Court for the Eastern District of California, Garland E. Burrell, Senior District Judge, Presiding. D.C. No. 2:05-cv-01349-GEB-KJN.

Before: SUSAN P. GRABER, CARLOS T. BEA, and ANDREW D. HURWITZ, Circuit Judges.

OPINION

HURWITZ, Circuit Judge:

The central question in this case is what procedure appointed counsel in a habeas appeal should follow when seeking to withdraw. Ninth Circuit Rule 4-1(c)(6) provides the answer.

I.

In 2003, Kinte Graves was convicted in California state court of various felonies. The convictions were affirmed on direct appeal and the California Supreme Court denied a petition for review. The superior court denied Graves' state habeas corpus petition. Graves did not seek habeas review in either the California Court of Appeal or the California Supreme Court.

Graves then filed a 28 U.S.C. § 2254 habeas corpus petition in the United States District Court for the Eastern District of California. The district court denied relief, but issued a certificate of appealability (" COA" ) on five issues. The court then appointed appellate counsel for Graves under the Criminal Justice Act, 18 U.S.C. § 3006A.

Counsel subsequently filed an opening brief in this court in the style required by Anders v. California for direct criminal appeals in which appellate counsel can find no viable issues. 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Citing to applicable law and the record, the opening brief explained why none of the five issues certified by the district court warranted habeas relief and requested permission to withdraw. In response, Graves filed a pro se " Declaration of Conflict," requesting that we strike the Anders brief and substitute counsel. We denied that request, but gave Graves leave to file a pro se supplemental brief. He failed to do so.

In their answering brief, the State appellants argue that appointed counsel may not file an Anders brief in a habeas appeal. Because the issue of how appointed counsel in habeas appeals should seek to withdraw in such circumstances is recurrent, we today clarify that use of the Anders ...


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