Love v. McCray, Docket No. 03-2307-pr (2d Cir. July 1, 2005) (Walker, Jacobs, Wesley) (per curiam): It’s hard to know what to make of this very short opinion, since it’s very light on the relevant facts. The gist of it is that the Court denies appointed counsel’s motion (filed pursuant to Anders v. California) to be relieved as counsel on appeal on the ground that there are no non-frivolous appellate issues, because the Court disagrees that there are only frivolous issues to appeal. As the Court concludes, counsel’s argument (in support of his Anders motion) shows only “that the appeal is likely without merit, not that it is frivolous.” Op. at 6. Because the opinion is short on facts, however, it’s hard to evaluate who’s right (even assuming that a line can be drawn between a merely meritless appeal (which appointed counsel must prosecute) and a frivolous one (which appointed counsel must not prosecute)).
The only interesting thing about the opinion is its suggestion that because the Circuit itself earlier granted a Certificate of Appealability to the formerly pro se petitioner (after the district court denied it), it has already concluded that the appeal is non-frivolous, and thus that an Anders motion is not appropriate. The Court does not come right out and say this, but suggests this point by citing Lucidore v. New York Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000) , for the proposition that a COA that has already been issued is treated as “presumptive[ly] legitimate.” Op. at 6-7.
This presumption makes intuitive sense, since a COA can be issued only if the habeas petitioner has made a “substantial showing of the denial of a constitutional right.” Barefoot v. Estelle, 463 U.S. 880 (1983). By granting a COA and allowing the appeal to proceed, therefore, the Circuit has already concluded that the appeal is not frivolous. An Anders motion filed after a COA has issued represents, in a way, an attempt to re-litigate the question of whether the appeal is frivolous. And in Love, perhaps, the Circuit is telling appointed counsel not to bother wasting its time relitigating the issue of frivolousness.
Of course, no firm rule is established in this case. Surely, the Circuit will consider each case — and each Anders motion — in light of the particular facts, and grant or deny the motion accordingly. Nonetheless, Love is at least a warning to appointed counsel to be particularly diligent in supporting his or her Anders request in an appeal where the Court has already issued the COA.
Finally, whether the same rule / warning applies when the COA was issued by the district court rather than the Circuit is anybody’s guess ….
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