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Second Circuit Holds Appointment of Counsel for Direct Appeal Not Subject to Frivolousness Rule

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held in forma pauperis (“IFP”) “motions on direct criminal appeals are not subject to a merits determination under [28 U.S.C.] Section 1915.” The Court explained that this rule “ensures that all financially eligible defendants—whether granted CJA [Criminal Justice Act] counsel in district court or for the first time on appeal—are subject to the same standards.”

When Michael Nunez filed his notice of appeal after being sentenced to over 12 years in prison for conspiracy to distribute controlled substances, retained counsel moved to withdraw and asked the court to appoint counsel for Nunez because he was unable to afford to hire another lawyer.

But the district court denied the motion, saying that “any appeal would be frivolous and not taken in good faith.” Nunez then asked the Second Circuit to appoint counsel, and it did, ruling that the district court used the wrong standard to deny Nunez counsel on direct appeal.

At the outset, there are two different standards for appointment of counsel on appeal: one for criminal appellants and another for civil appellants. The main difference is that the rule for civil cases requires a court to look at the merits of the issues for appeal before appointing counsel, but criminal appeals do not require this step.

The standard used by the district court here only applies to civil appellants, the Court noted. Under 28 U.S.C. § 1915, the district court is required to look at the grounds for a civil appeal and determine if the appeal would be taken “in good faith” before appointing counsel. If the district court denies appointment of counsel because the appeal would be frivolous and not taken in good faith, the appellant can then renew his request in the Court of Appeals. § 1915(e)(2).

“But criminal appeals are altogether different,” the Second Circuit explained. Under the CJA, a criminal appellant “financially unable to obtain” a lawyer has to prove only that he cannot afford a lawyer to be granted permission to appeal “in forma pauperis.” He does not need to demonstrate that his appeal has merit, the Court continued. And he also does not need to prove that he is indigent in order to qualify financially; showing the inability to hire a lawyer is enough.

Importantly, the CJA does not require the court to look at the merits of the appeal before appointing counsel. This aligns with Supreme Court decisions on the right to counsel on direct appeal, the Court said. By looking at the merits before appointing counsel, the court is in effect deciding the appeal without counsel. That contradicts the Supreme Court’s repeated holdings that criminal defendants have a right to counsel on direct appeal.

In Douglas v. California, 372 U.S. 353 (1963), the Supreme Court explained that where the merits of a direct criminal appeal are decided without the assistance of counsel, “we think an unconstitutional line has been drawn between rich and poor.” Even when counsel moves to withdraw from an appeal because it would be frivolous, the Supreme Court requires that counsel must still file a brief on any meritorious issues that arguably would support an appeal. Anders v. California, 386 U.S. 738 (1967). Only then can a Court of Appeals decide the merits of an appeal without the assistance of counsel.

Attaching the frivolousness rule for civil appellants to criminal appellants is clearly barred by the Supreme Court’s position on the right to counsel, the Second Circuit said. “In the end, all criminal defendants – indigent or not – possess the right to a zealous advocate on appeal who must conduct a conscientious review of the record,” the Court concluded. “That right would be vitiated if we could dismiss an indigent defendant’s appeal as frivolous on the basis of an IFP motion before that review has occurred.”

“[W]e hold that motions for IFP status and for appointment of CJA counsel shall be granted in direct criminal appeals solely based on the defendant’s financial eligibility under the CJA and without consideration of the merits of the appeal,” the Court announced in its published decision.

The Court noted that in formally adopting this rule it was joining “three other circuits that have consider the issue,” viz., United States v. Durham, 922 F.3d 845 (7th Cir. 2019); United States v. Osuna, 141 F.3d 1412 (10th Cir. 1998); United States v. Dangdee, 608 F.2d 807 (9th Cir. 1979). But the Fifth Circuit took the opposite position in United States v. Boutwell, 896 F.2d 884 (5th Cir. 1990).

Accordingly, the Court granted Nunez’s motion for appointment of counsel and directed the Clerk’s Office to do so in accordance with the CJA. See: United States v. Kosic, 944 F.3d 448 (2d Cir. 2019). 

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Related legal case

United States v. Kosic



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