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Appointed counsel must explain why rehearing would be frivolous

If a recent spate of orders from the chambers of Judge Kenneth F. Ripple is any indication, too many attorneys appointed to represent defendants in the Seventh Circuit don’t understand their obligations after losing an appeal.

Since July, Judge Ripple has issued three orders, all published, addressing the duties of counsel under Section V.3 of the court’s Criminal Justice Plan Act.

Prior to the publication of these three orders, the most recent published order concerning the rule was back in 1994. U.S. v. Howell, 37 F.3d 1207 (7th Cir. 1994).

The first recent order to address the rule was in U.S. v. Price, 491 F.3d 613 (7th Cir. 2007). Price was found guilty by a jury of conspiring to distribute cocaine, and sentenced to life. The Seventh Circuit affirmed, but issued a limited Paladino remand to the district court, which indicated it would have imposed the same sentence even if had it known the Federal Sentencing Guidelines were merely advisory.

Appellate counsel then indicated to Price that he would begin the process of seeking certiorari in the Supreme Court. However, counsel did not do so, informing Price six months later that he had determined it would not be “prudent” to do so.

In response to an inquiry from the Seventh Circuit, counsel represented that there were no reasonable grounds for certiorari.

Without addressing whether there actually were any non-frivolous grounds for certiorari, Judge Ripple found that counsel failed to comply with his obligations under the Plan, and ordered that new counsel be appointed.

Judge Ripple ordered that new counsel, within 14 days of appointment, either file a petition for rehearing or en banc review in the Seventh Circuit, file a petition for certiorari in the Supreme Court, or, after consultation with Price, inform Price that it would be inappropriate to seek certiorari, so that Price could, should he choose, ask the Seventh Circuit to determine whether it would order that a petition be filed.

Several months later, Judge Ripple issued another such order, in U.S. v. Hawkins, 505 F.3d 613 (7th Cir. 2007).

Hawkins was convicted of robbery affecting interstate commerce and other charges, and the Seventh Circuit affirmed his convictions. On the date of the deadline for seeking a rehearing, Hawkins’ counsel moved to withdraw and requested a 30-day extension so Hawkins could file a petition for rehearing on his own behalf. Hawkins then moved for new counsel.

Judge Ripple granted both the motion to withdraw, and Hawkins’ motion for new counsel.

Ripple found counsel’s motion to withdraw “conclusory,” stating, “The motion to withdraw states in conclusory fashion that there was no dissent from the panel’s holding, that the case was decided on largely factual, as opposed to legal, grounds, and that the opinion identifies no split in authority.”

Ripple continued, addressing the legality of a show-up identification, which was one of the issues in the case: “factual distinctions in such cases are very important in assessing whether the procedure was a fair one. The papers before me demonstrate no effort on the part of counsel to come to grips with existing case law or with the panel’s analysis. Neither do they demonstrate why a petition for rehearing necessarily would be frivolous.”

Accordingly, Ripple appointed new counsel, and directed counsel to file a more specific motion to withdraw, should he determine that rehearing would be frivolous, or to seek rehearing if appropriate, within 30 days of appointment.

Most recently, the court on Jan. 28, ordered the appointment of new appellate counsel in a similar case.

Shaaban Hafiz Ahmad Ali Shaaban was convicted of attempting to sell the names of CIA agents working covertly in Iraq to the Iraqi Intelligence Service. His attorney moved to withdraw, but the court ordered him to address whether the district court correctly calculated Shaaban’s guideline range.

The Seventh Circuit later determined that the district court did not miscalculate the guideline range, but properly exercised its discretion to sentence Shaaban above the guideline range.

Prior to the court’s decision, counsel informed Shaaban that he would seek rehearing if the appeal was unsuccessful, but he did not do so. After the deadline for seeking rehearing had lapsed, Shaaban received a letter from counsel stating that the sentence had been affirmed, but making no mention of a rehearing.

Shaaban then filed a pro se petition for rehearing, which the clerk denied as untimely. Shaaban responded with a motion to withdraw the final mandate, and the court ordered counsel to respond; counsel acknowledged that he erred in not providing an adequate explanation to his client, but asserted there were no non-frivolous grounds for a rehearing.

As in the other cases, Judge Ripple concluded that appellate counsel failed to fulfill his duties under Section V.3: “Counsel was under a continuing obligation to communicate with Mr. Shaaban. Counsel failed to explain adequately to Mr. Shaaban why, despite counsel’s initial view that a petition for rehearing would be appropriate, our actual disposition foreclosed the arguments that he had intended to raise in a petition for rehearing. Given the course of events, Mr. Shaaban was left with the misapprehension that a petition for rehearing was filed.”

Judge Ripple emphasized that counsel is under no obligation to file a frivolous petition, but found counsel’s explanation inadequate.

Similar to the attorney in Hawkins, Shaaban’s attorney contended the petition would be frivolous because the court’s decision was “rooted in a factual determination.”

As in Hawkins, Judge Ripple rejected the explanation, stating, “a petition for rehearing is not necessarily frivolous simply because it requires a fact-based inquiry.”

Accordingly, Ripple ordered that new counsel be appointed, and ordered that, within 30 days of appointment, he either file a petition for rehearing, or a motion to withdraw on the grounds that the petition would be frivolous.

In an interview with Wisconsin Law Journal, Judge Terence T. Evans stated that, although Judge Ripple is the only judge on the court who issues published orders on the issue, all of the judges see the same problem during their respective turns as the court’s motions judge.

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