L.A.R. Misc. 109.2: Motions by Trial Counsel to Withdraw Representation

(a) Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738 (1967), which must be served upon the appellant and the United States. The United States must file a brief in response. Appellant may also file a brief in response pro se. After all briefs have been filed, the clerk will refer the case to a merits panel. If the panel agrees that the appeal is without merit, it will grant counsel's Anders motion, and dispose of the appeal without appointing new counsel. If the panel finds arguable merit to the appeal, or that the Anders brief is inadequate to assist the court in its review, it will appoint substitute counsel, order supplemental briefing and restore the case to the calendar. The panel will also determine whether to continue the appointment of current counsel or to direct the clerk to discharge current counsel and appoint new counsel.

(b) In cases in which a motion to withdraw filed by counsel appointed under the Criminal Justice Act has been granted after the filing of a brief pursuant to Anders v. California, 386 U.S. 738 (1967), the court in its decision determining the case may state that the issues presented in the appeal lack legal merit for purposes of counsel filing a petition for writ of certiorari in the Supreme Court. In such a case counsel is under no obligation to file a petition. In all other cases in which counsel appointed under the Criminal Justice Act is of the opinion, in his or her professional judgment, that no issues are present which warrant the filing of a petition for writ of certiorari in the Supreme Court, counsel must promptly file with the court of appeals a motion stating that opinion with particularity and requesting leave to withdraw. SeeAustin v. United States, 513 U.S. 5 (1994). Any such motion must be served on the appellant and the United States.

(c) If the court is of the opinion in a case in which counsel has been appointed under the Criminal Justice Act that there are no issues present which warrant the filing of a petition for writ of certiorari, the court may include a statement to that effect in its decision and counsel may thereafter file the appropriate motion to withdraw. Any such motion must be served on the appellant and the United States. The absence of a statement by the court with respect to the merit of issues which might be presented to the Supreme Court must not be construed as an indication of the opinion of the court of appeals of merit or lack of merit of any issue.

New provision in 1995. 3d Cir. L.A.R. Misc. 109.2 sets out for the first time the procedure by which trial counsel may withdraw from a non-meritorious criminal appeal pursuant to Anders v. California, 386 U.S. 738 (1967). Addition of sections (b) and (c) was made in response to Austin v. United States, 513 U.S. 5 (1994). Subsection (a) was revised in 2008 to conform with United States v. Marvin, 211 F.3d 778, 782 n.4 (3d Cir. 2000).