(a) Continuation of Counsel. When a defendant in a criminal case seeks to appeal, defendant’s counsel, whether retained or appointed, is responsible for representing the defendant unless relieved by this court.

(b) Motion to Withdraw – Frivolousness of Appeal. Counsel who seeks to withdraw from representing a defendant on appeal on the ground that the appeal presents no nonfrivolous issues must file a motion and brief in accordance with Anders v. California, 386 U.S. 738 (1967), subsequent case law, and this court’s instructions.

(c) Motion to Withdraw – Adverse Decision. Within 14 days after a decision by this court that is adverse to the defendant, appointed counsel may file a motion in this court to be relieved of the obligation to file a petition for a writ of certiorari with the U.S. Supreme Court if counsel has reasonable grounds to believe that the petition would have no likelihood of success. The motion must be accompanied by proof of service on the defendant and the government. The motion must also state that counsel has explained to the defendant how to file a timely petition for certiorari pro se.

(d) Motion to Withdraw – Other Grounds. Counsel who seeks to withdraw from representing a defendant on appeal on other grounds must proceed by motion as follows:

(1) Advice to Defendant. Before moving to withdraw as appellate counsel, counsel must advise the defendant that (A) the defendant must promptly obtain other counsel unless the defendant desires to appear pro se, and (B) if the defendant is financially unable to obtain counsel, this court may appoint counsel under the Criminal Justice Act, 18 U.S.C. § 3006A (CJA). If the defendant desires to appear pro se, counsel must advise the defendant in writing of the deadlines for docketing the record and filing the brief. If the defendant is represented by retained counsel and seeks appointment of new counsel on appeal, retained counsel must ensure that the defendant receives and completes the appropriate application forms.

(2) Content of Motion. A motion to withdraw must state the reasons for such relief and must be accompanied by one of the following:

(A) a document or statement showing that new counsel has been retained or appointed to represent the defendant;

(B) the defendant’s completed application for appointment of counsel under the CJA or a showing that the defendant has already filed that application with the court;

(C) if the defendant is currently represented by appointed counsel, a request that substitute counsel be appointed under the CJA;

(D) the defendant’s signed statement that the defendant has been advised that the defendant may retain new counsel or apply for appointment of counsel, and that the defendant does not wish to be represented by counsel but wishes to appear pro se; or

(E) a document or statement showing that exceptional circumstances prevent counsel from meeting any of the requirements stated in (A) to (D) above.

(3) Procedure. A motion to withdraw (A) must be accompanied by proof of service on the defendant and the government, and (B) is determined in accordance with FRAP 27.

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Last modified at 12/16/2009