Motion to withdraw from representing defendant on appeal; Whether counsel’s brief met the requirements of Anders v California; Requirement that counsel consider defendant’s claims to be “wholly frivolous” after a diligent & thorough search of the record

In an order, the court considered defendant-Harris’s attorney’s motion to withdraw from representing him and deferred its ruling, finding that counsel’s brief did not comply with Anders’s requirements. Harris pled guilty under a Rule 11(c)(1)(C) agreement where he waived the right to appeal his conviction and sentence. Despite this, he still appealed. His attorney sought to withdraw after concluding that there were no arguable issues to appeal. He filed a brief under Anders, but the court found it deficient. It held that to withdraw under Anders, counsel must conclude that the appeal “would be ‘wholly frivolous,’ i.e., that the appeal presents no legal claims ‘arguable on their merits.’” Counsel must show that he diligently and thoroughly searched the record for such a claim, including possible claims outside the waiver’s scope. In this case, “the entire written explanation for counsel’s motion to withdraw is the one-sentence line in the motion and the attached document’s reference to the appellate waiver. That does not suffice.” The court noted that its “independent review of the record” could not substitute for the Anders brief as it is “no substitute for the sort of adversary representation promised under the Sixth Amendment.” It noted that “counsel is not required to exhaust every possible issue, no matter how minor or implausible. But at a minimum, counsel must address the key issues in a case. Thus, when an Anders brief turns on a guilty plea and appellate waiver, defense counsel should address whether the guilty plea and appellate waiver were knowing and voluntary.” In addition, counsel should “address whether there are any non-frivolous claims that fall outside the waiver’s scope or would potentially not be barred by the waiver due to a miscarriage of justice.” The court ordered counsel to file a supplemental brief within 30 days addressing these issues and any others he deems relevant.