U.S. v. Wagner
Decision Date | 26 October 1998 |
Docket Number | No. 97-41028,97-41028 |
Citation | 158 F.3d 901,1998 WL 744000 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Tracy Joseph WAGNER, Defendant-Appellant. Summary Calendar. |
Court | U.S. Court of Appeals — Fifth Circuit |
Dane H. Smith, Tyler, TX, for Plaintiff-Appellee.
Wayne R. Dickey, Tyler, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Texas.
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
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 opportunity 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) ( ).
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, Anders 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 Anders brief has been filed would "open the door to abuse of this valuable sixth amendment...
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...Id. "[I]f done correctly, Anders briefs are more difficult and time-consuming than ordinary appellate briefs." United States v. Wagner, 158 F.3d 901, 902 (5th Cir. 1998). If after thoroughly reviewing the record and researching the law, the attorney is able to find only arguments that canno......
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Mitchell v. Champs Sports, No. 1:98-MC-43.
...be accompanied by a brief referring to anything in the record that might arguably support movant's case. See United States v. Wagner, 158 F.3d 901, 1998 WL 744000 (5th Cir. 1998) (the brief should explain the nature of the case and fully discuss the issues The motion to proceed in forma pau......
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Worstell v. State, No. 04-03-00386-CR (TX 3/30/2005)
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