10th Cir. R. 46.4: Withdrawal

(A) Motion requirements. Every motion to withdraw in a criminal appeal or in an appeal in a postconviction proceeding must include:

(1) the reasons for withdrawal;

(2) one of the following:

(a) a showing that new counsel has been retained or the client already has other counsel of record in the appeal;

(b) a showing that: (i) the client has been granted leave to proceed on appeal without prepayment of fees or has been found eligible for benefits under 18 U.S.C. § 3006A; and (ii) the client desires the appointment of counsel;

(c) if the client has been found ineligible for benefits under 18 U.S.C. § 3006A, a statement that counsel has advised the client to obtain other counsel promptly;

(d) if the client intends to proceed pro se: (i) a signed statement from the client demonstrating knowledge of the right to retain new counsel or apply for appointment of counsel and expressly electing to appear without counsel; and (ii) a statement from counsel that he or she has advised the client of the right to representation, if any, and of any pending obligations under the Federal Rules of Appellate Procedure or this court’s local rules; or

(e) a showing that exceptional circumstances prevent counsel from meeting any of the other requirements of this subsection; and

(3) proof of service on the client.

(B) Frivolous appeals.

(1) Duty of counsel. In a direct criminal appeal, if counsel believes the appeal is wholly frivolous or believes opposition to a motion to dismiss would be wholly frivolous, counsel must file an Anders brief, request permission to withdraw, and advise the court of the defendant’s current address. See Anders v. California, 386 U.S. 738 (1967). If the defendant is a non-English speaker, the motion to withdraw must state counsel has made “reasonable efforts to contact the defendant in person or by telephone, with the aid of an interpreter if necessary, to explain to the defendant the substance of counsel’s Anders brief, the defendant’s right to oppose it, and the likelihood that the brief could result in dismissal of the appeal.” United States v. Cervantes, 795 F.3d 1189, 1190 (10th Cir. 2015) (internal quotation and ellipses omitted). Written notice in a language understood by the defendant will also satisfy this duty. Id. The motion required by Rule 46.3(B) is separate from any motion filed later, in connection with the filing of the Anders brief. That is, the requirement set forth in Rule 46.3(B) is distinct from any motion later filed under Anders.

(2) Notice to defendant. Except as provided in (3), the Clerk will send the defendant by certified mail, return receipt requested, a copy of the Anders brief, the motion to withdraw, and a letter in the form set out in 10th Cir.

Form 4.

(3) Incompetent defendant. If the defendant has been found incompetent or there is reason to believe that the defendant is incompetent, the motion to withdraw must so state, and the matter will be referred to the court for appropriate action.

(C) Attorney withdrawal in civil cases. Where counsel of record for any party files a motion to withdraw after the mandate has issued, the court will treat the motion as a notice of withdrawal. This rule applies in civil cases only and does not apply in postconviction proceedings filed under 28 U.S.C. § 2254 or § 2255.