Graves v. McEwen

Although filing an Anders brief is not constitutionally mandated in a habeas appeal when appointed counsel seeks to withdraw, appellate rules contemplate such a procedure.

Kinte Graves was convicted in California state court of various felonies. He exhausted his direct appeal options and filed a federal habeas corpus petition in the district court. The district court denied relief but appointed appellate counsel on five issues under the Criminal Justice Act. The appointed counsel filed an Anders v. California brief, a style brief typically used for direct criminal appeals. The Ninth Circuit, having no previously published opinion on whether this was the correct procedure, addressed the issue and found it was correct. "The Anders brief is designed to safeguard a defendant's Sixth Amendment right to direct appellate counsel." While an Anders brief is typically used in direct appeals, other circuits and unpublished opinions in the Ninth have contemplated its use in § 2254 habeas appeals. The panel held that, "although filing an Anders brief is not constitutionally mandated in a habeas appeal when appointed counsel seeks to withdraw, our Rules expressly contemplate such a procedure." Having determined an Anders brief was proper, and Graves' counsel filed such procedure, the panel held the certified issues provide no basis for appellate relief. MOTION GRANTED, JUDGMENT AFFIRMED.