HOW TO FILE AN ANDERS BRIEF IN THE UNITED STATES
These instructions detail the requirements for filing an “Anders brief” in the event defendant-appellant’s counsel determines that no non-frivolous issues exist on appeal after thorough review of the district court record. An Anders brief must set forth a “conscientious examination” of the appellant’s case and explain fully why there are no non-frivolous issues.
This Court has set a high standard for determining what constitutes a satisfactory Anders brief. See Anders v. California, 386 U.S. 738, 744 (1967); Nell v. James, 811 F.2d 100, 104 (2d Cir. 1987).
In the event that counsel fails to articulate fully why there are no non-frivolous issues present, the Court may direct counsel to file a new brief addressing the inadequately briefed issues and possibly reduce or deny payment of counsel’s CJA fees. See United States v. Burnett, 989 F.2d 100, 105 (2d Cir. 1993). The Court may also elect to appoint new counsel when the submitted Anders brief is ruled insufficient. See id.
An Anders brief must state on the cover “Pursuant to Anders v. California, 386 U.S. 738 (1967).” A copy of the transcript of the proceedings below must be submitted with the brief. The transcript should be included in the appendix filed with the brief, as well.
When filing an Anders brief, counsel must file: (1) a motion to be relieved as counsel and (2) a Pre-Sentence Investigation Report (PSR). If the case involves imposition of a sentence constituting a variance from the United States Sentencing Commission Guidelines, counsel must also file the statement of reasons issued by the district court in accordance with Fed. R. Crim. P. 32(h). The Court of Appeals will review the PSR and statement of reasons, if filed, and determine the motion at the time it hears the case.
When filing an Anders brief, counsel must also submit to the Court an affidavit or affirmation stating that the client has been informed that:
When counsel has reason to believe that the client may not speak English, or may be illiterate, or both, counsel’s affidavit or affirmation should describe counsel’s reasonable efforts to communicate to the client the above three Anders notice requirements and the substance of the Anders brief in a manner and a language understood by the client. See United States v. Leyba, 379 F.3d 53 (2d Cir. 2004); United States v. Santiago, 495 F.3d 27 (2d Cir. 2007).
In addition, counsel must submit proof of service detailing the means by which a copy of the Anders brief, the motion to be relieved as counsel, and the Court’s so-ordered scheduling notification was served on the client and any other party.
Response of U.S. Attorney: In lieu of an appellee’s brief, the U.S. Attorney may file a motion for summary affirmance. The time for filing the motion for summary affirmance is governed by the procedures set forth above regarding the timing for filing appellee’s brief.
Response of Defendant: When the attorney has submitted an Anders brief, the defendant has an automatic right to submit a pro se responsive brief arguing that there are meritorious issues to the appeal. A defendant who intends to file a responsive brief must notify the Court in writing within 14 days of receipt of the Anders brief and set forth the date by which the brief will be filed. Unless the case involves a voluminous transcript, the defendant must select a filing date that is within 91 days of receipt of the Anders brief. Defendant’s letter will be so-ordered unless the Court determines the selected filing date is unacceptable.
Anders Briefs in Guilty Plea Cases
To demonstrate compliance with Anders and Burnett, the Anders brief in guilty plea cases ordinarily must contain the following discussion points:
Counsel is strongly encouraged to use the Court’s Anders checklist to ensure compliance with Anders and Burnett. The checklist is available here.
Last modified at 10/24/2011