No. 97-5238 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 BRIAN L. MILLER, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEBORAH WATSON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether petitioner was denied his right to petition this Court for a writ of certiorari when his appointed counsel declined to file a petition and instead was granted leave by the court of appeals to withdraw from the case on the grounds that no nonfrivolous issues existed for review. 2. Whether the Tenth Circuit abused its discretion in denying petitioner's motion to recall, set aside, and reenter the court's mandate in order to allow him to file a timely petition seeking this Court's review of his conviction. ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1997 No. 97-5238 BRIAN L. MILLER, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 1-35) is reported at 84 F.3d 1244. The order of the court of appeals denying petitioner's motion to recall the mandate (Pet. App. 74) is not reported. JURISDICTION The judgment of-the court of appeals was entered on May 20, 1996. On April 25, 1997, the court of appeals denied petitioners motion to recall, set aside, and reenter the mandate and for appointment of counsel. The petition for a writ of certiorari was filed on July 17, 1997, and is accordingly out of time under Rule 13.1 of this Court's Rules. The jurisdiction of this Court is ---------------------------------------- Page Break ---------------------------------------- 2 invoked under 28 U.S.C. 1254(1). STATEMENT Following a jury trial in the United States District Court for the District of Kansas, petitioner was convicted of possession of methamphetamine with intent to distribute it, in violation of 21 U.S.C. 841(a) (l); possession of marijuana with intent to distribute it, in violation of 21 U.S.C. 841(a) (l); using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. 924(c) (l); and being a-felon in possession of a firearm, in violation of 18 U.S.C. 922(g). 1 He was sentenced to 322 months' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed petitioner's convictions on the drug charges, reversed petitioner's convictions on the firearms charges, and remanded for resentencing. Pet. App- 1-35. On remand, petitioner was resentenced to 262 months' imprisonment, to be followed by a five-year term of supervised release. 1. The evidence at trial showed that on March 8, 1994, a Kansas Highway Patrol officer stopped the van petitioner was driving for-speeding. Michael Ray Hicks was a passenger in the van. During the course of the stop, the officer saw a drug pipe in the center dashboard ashtray, and arrested petitioner and Hicks for possession of drug paraphernalia. It was later determined that the ___________________(footnotes) 1 Co-defendant Michael Ray Hicks was convicted on the drug charges, of using or carrying a firearm during and in relation to a drug trafficking offense, and of interstate transportation of a stolen vehicle. ---------------------------------------- Page Break ---------------------------------------- 3 van was stolen. During an inventory search of the van, the officer found a glass drug pipe with methamphetamine residue under the carpet behind the passenger seat, and, in the rear of the van, a blue bag containing methamphetamine, marijuana, and a loaded Smith & Wesson semi-automatic handgun. Pet. App. 3-5. The officer also found a large black bag containing, among other things, personal items belonging to Hicks, a loaded .380 automatic handgun, a set of scales with methamphetamine residue, a small spoon, zip-lock baggies, and notebooks containing drug ledgers. The writing in one of the notebooks matched the writing found in petitioners address book, which was found on petitioner's belt. The officer also found a package containing marijuana hidden under the right rear quarter panel of the van. Pet. App. 3-5, 15-16. On appeal, petitioner contended that there was insufficient evidence to support his drug and-firearms convictions. The court of appeals affirmed petitioner's drug convictions, finding that a reasonable jury could infer from the presence of petitioner's drug notebook inside Hicks' black bag along with the tools of the drug trade that both petitioner and Hicks were jointly involved in drug distribution. Pet. App . 17-18. Because neither of the bags contained sufficient belongings of petitioner to establish that the bags were his, however, the court found insufficient evidence to show that petitioner had knowing ownership or control over either of the firearms found inside the bags. The court rejected the argument that petitioner's knowledge that the bags contained drugs and drug paraphernalia established his awareness that the bags ---------------------------------------- Page Break ---------------------------------------- 4 contained firearms. Pet. App. 19-20. 2 2. Petitioner's counsel advised petitioner by letter of the court of appeals' decision. Pet. App. 62. 3 In a letter dated June 3, 1996, petitioner acknowledged receiving counsel's letter and requested a copy of the court of appeals' opinion. Petitioner also requested counsel to file a petition for rehearing, and, in the event such petition was unsuccessful, a petition for a writ of certiorari. Pet. App. 59. In early June 1996, counsel responded in writing to petitioner's request by stating that she did not intend to file a petition for rehearing. She observed that petitioner was fortunate that the government had not filed a rehearing petition. Counsel also advised that the law had changed concerning her duty to file a petition for a writ of certiorari. Counsel stated that pursuant to the Criminal Justice Act, defense counsel was permitted to file a motion to withdraw as counsel if she believed there were no valid grounds for seeking Supreme Court review. Counsel stated: "Unless there is a drastic change in the law in the near future, in my opinion there are no grounds for seeking certiorari review in the ___________________(footnotes) 2 The court reversed Hicks' conviction for using or carrying a firearm during and in relation to a drug trafficking offense, and remanded for a new trial on that charge, after finding that the jury instructions defining "use" under 18 U.S.C. 924(c) ran afoul of this Court's decision in Bailey v. United States, 116 S. Ct. 501 (1995) . Pet. App. 20-30. 3 Most of the letters written by counsel to petitioner following the court of appeals' May 20, 1996 decision were erroneously dated "April 23, 1996." We therefore are reciting the dates alleged by petitioner as the dates he actually received the various correspondence from defense counsel. ---------------------------------------- Page Break ---------------------------------------- 5 Supreme Court." Counsel noted that her decision did not prevent petitioner from filing a pro se petition for certiorari, and also that the government had until August 18, 1996, to file a petition for a writ of certiorari to seek review of the portion of the case it had lost. Pet. App. 61. On June 12, 1996, "petitioner wrote to counsel and outlined the reasons he felt the evidence at trial was insufficient to support his drug convictions. Pet. App . 63-64. In a postscript, petitioner disagreed with counsel's view that no basis for further review existed, and he insisted that counsel prepare a petition for a writ of certiorari. Petitioner alluded to an unnamed Supreme Court decision that he believed had barred defense counsel from withdrawing as counsel if her client requested that she file a certiorari petition. Pet. App. 65. On July 1, 1996, counsel filed a motion in the court of appeals to withdraw from representation, and served a copy of the motion on petitioner. The motion recited that there were "no grounds for seeking Supreme Court review that are nonfrivolous, or that are consistent with the standards for filing a petition contained in the Rules of the Supreme Court. " Pet. App. 82. That motion was in compliance with Tenth Circuit Rules, which direct counsel to move to withdraw from representation if counsel determines there are no grounds for seeking Supreme Court review that are not frivolous and consistent with the standards for filing ---------------------------------------- Page Break ---------------------------------------- 6 certiorari petitions. 10th Cir. R. Addendum I, 2.d. 4 On July 18, 1996, the court of appeals granted the motion. Pet. App. 67. On July 17, 1996, petitioner was transferred from his place of imprisonment at FCI Terminal Island, California, to Kansas for resentencing. Pet. App. 48. On September 26, 1996, while awaiting resentencing, petitioner received a copy of the court's July 18, 1996, order granting counsel's motion to withdraw, as well as a letter from counsel advising petitioner of that order. The letter from counsel stated that if petitioner wished to file a pro se petition for a writ of certiorari, it would be due on August 18, 1996. Pet. 6; Pet. App. 48-49. These two pieces of correspondence had originally been sent to FCI Terminal Island, California, and then been forwarded to petitioner in Kansas. Ibid On November 18, 1996, petitioner was resentenced, and on ___________________(footnotes) 4 The Tenth Circuit's Rule provides: If the judgment of this court is adverse to the client, counsel must inform the client of the right to petition the Supreme Court of the United States for a writ of certiorari. Counsel must file a petition for a writ of certiorari if the client requests that such a review be sought and, in counsel's considered judgment, there are grounds for seeking Supreme Court review that are not frivolous and are consistent with the standards for filing a petition contained in the Rules of the Supreme Court and applicable case law. If, on the other hand, the client requests that counsel file a petition for a writ of certiorari and, in counsel's considered judgment, there are no grounds for seeking Supreme Court review that are non-frivolous and consistent with the standards for filing a petition contained in the Rules of the Supreme Court and applicable case law, counsel must submit a written motion for leave to withdraw from the representation with this court promptly after the entry of judgment. If this court grants counsel's motion and terminates counsel's appointment, counsel must so advise the client in writing as soon as possible. ---------------------------------------- Page Break ---------------------------------------- 7 December 3.0, 1996, he was returned to FCI Terminal Island. Pet. App . 49-50. He thereafter wrote counsel , advised that he was preparing a petition seeking review of his case pursuant to 28 U.S.C. 2255, and requested counsel to send him the case file. Pet. 6-7; Pet. App. 49-50, 71. On January 10, 1997, counsel sent petitioner the requested material. Pet. App. 50. On April 14, 1997, petitioner filed a petition to recall, set aside, and reenter the mandate, and requested the appointment of counsel. Pet. App . 45-53. Petitioner claimed that given the circumstances outlined above, the mandate should be reentered to allow him the opportunity to file a petition for writ of certiorari. Pet. App. 53. On April 25, 1997, the court of appeals denied the petition. Pet. App. 74. ARGUMENT 1. Petitioner contends (Pet. 7-11) that by granting his counsel's motion to withdraw based solely on her "bare bones" assertion that there were no nonfrivolous grounds for seeking review in this Court, the Tenth Circuit failed to comply with the requirements of Anders v. California, 386 U.S. 738 (1967). That claim lacks merit. In Anders, this Court held that a criminal defendant may not be denied the assistance of counsel on direct appeal based solely on appointed counsel's bare assertion that there is no merit to the appeal. Rather, the Court outlined procedures designed to protect the "constitutional requirement of substantial equality and fair process," Anders, 386 U.S. at 744, set forth in Douglas v. ---------------------------------------- Page Break ---------------------------------------- 8 California, 372 U.S. 353 (1963), in which the Court held that denial of counsel to indigents on first appeal as of right violated the Equal Protection Clause. Pursuant to Anders, when appointed counsel deems his client's claims on appeal to be wholly without merit, he must first advise the court that the case is frivolous and request permission to withdraw. Such a request must be accompanied by a brief referring to anything in the record that might arguably support the appeal. If, after a full examination of the proceedings, the court of appeals finds no nonfrivolous issue for appeal, it may proceed to consider the appeal on the merits without assistance of counsel. Anders, 386 U.S. at 744. See also Penson v. Ohio, 488 U.S. 75, 80 (1988). The Court has subsequently made clear that the principles announced in Anders apply only to a defendant's first appeal of right, and do not extend to discretionary appeals, such as petitions for writs of certiorari. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) ("Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitutional right to counsel" and does not apply to collateral post-conviction review) ; ROSS V. Moffitt, 417 U.S. 600, 616-617 (1974) (criminal defendants have no constitutional right to counsel to pursue discretionary state appeals or applications for review in Supreme Court) . Any doubt that appointed counsel has no duty to file a frivolous petition for a writ of certiorari at the request of his client was resolved in Austin v. United States, 513 Us. 5 (1994). There, appointed counsel applied to this Court for ---------------------------------------- Page Break ---------------------------------------- 9 leave to withdraw as counsel on the ground that no meritorious issues existed warranting the filing of a petition for certiorari, and the Court granted the application. The Court observed that many of the courts of appeals had promulgated rules under the Criminal Justice Act that imposed a mandatory duty on appointed counsel to file a petition for a writ of certiorari on behalf of an indigent client, even if the legal arguments were frivolous. Id. at 7. After reiterating that the constitutional right to appointed counsel on appeal does not extend to forums for discretionary review, the Court held that the Supreme Court Rules dealing with the grounds for granting certiorari, and penalizing frivolous filings, "apply equally to petitioners using appointed or retained counsel." Id. at 8. Accordingly, the Court directed the Circuit Judicial Councils to revise their Criminal Justice Plans if necessary to avoid any conflict with the Court' s Rules, specifically noting that the revised plans "should allow for relieving a lawyer of the duty to file a petition for certiorari if the petition would present only frivolous claims." Ibid. Thus , the withdrawal requirements outlined in Anders have no application to petitioner's petition for certiorari. Petitioner also errs in asserting (Pet. 10-11) that the result reached by the Tenth Circuit in this case conflicts with that of the Fifth Circuit in United States v. James, 990 F.2d 804, 805 (5th Cir. 1993). In James the Fifth Circuit sympathized with counsel's desire not to file a frivolous petition, but held that under the Fifth Circuit's Criminal Justice Plan in effect at that time, ---------------------------------------- Page Break ---------------------------------------- 10 counsel was required to file a petition for certiorari if his client so requested. The court also reminded counsel of the rule of Anders in the event counsel was unable to raise any issue of merit. Id. at 805. James, however, was decided before this Court's decision in Austin, and the Circuit Rule cited in James was among those that this Court in Austin identified as improperly conflicting with the Supreme Court Rule on frivolous petitions Austin, 513 U.S. at 7 n.l. In the wake of Austin, the Fifth Circuit has amended its rules to allow, as the Tenth Circuit did here, appointed counsel to decline to file a petition for certiorari and to withdraw from the case "either upon motion of counsel suggesting the futility of such a petition or upon a sua sponte finding and order by the court of appeals relieving counsel of that obligation. " 5th Cir. R. App. III, 4. Accordingly, the procedures followed by the Tenth Circuit in the present case are consistent not only with this Court's announcement in Austin, but also with the procedures adopted by other circuits in the wake of Austin. 2. Petitioner also claims (Pet. 11- 14) that the Tenth Circuit abused its discretion in denying his request to vacate and reenter the mandate in order to allow him to file a timely petition seeking this Court's review of his conviction. According to petitioner, such relief should have been granted because when counsel's motion to withdraw was mailed to his place of incarceration in California, he was already en route to Kansas for resentencing; accordingly, petitioner claims that he did not ---------------------------------------- Page Break ---------------------------------------- 11 receive a copy of the motion until September 26, 1996, after the time had run to petition this Court for review. Pet. 7. It is generally accepted that an appeals court has authority to vacate an otherwise-final judgment and recall its mandate under appropriate circumstances, see 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3938, (2d ed. 1996) (describing appellate court's inherent power of recall), and that the decision to do so in a given case is within the sound discretion of the appellate court. Zipfel v. Halliburton Co. , 861 F.2d 565, 567 (9th Cir. 1988); American Iron & Steel Institute v. EPA, 560 F.2d 589, 593-594 (3d Cir. 1977). The power to recall a mandate, however, is an. extraordinary remedy and should be exercised sparingly, only upon a showing of good cause and to prevent injustice, and only when exceptional circumstances exist to I justify recall or modification of a prior judgment. See, e.g., United States v. Skandier 1997 WL 581662 (3d Cir. Sept. 22, 1997) (recall "is an extraordinary remedy to be used only" in unusual circumstances to prevent injustice or otherwise for good cause") ; Ute Indian Tribe v. Utah 114 F.3d 1513, 1521 (l0th Cir. 1997) (power to recall "is limited and should be exercised only in extraordinary circumstances"); Ruiz v. Norris, 104 F.3d 163, 164 (8th Cir. 1997) (power to recall "is rarely exercised" and is "reserved for extreme and necessitous cases") ; Bellsouth Corp. v. FCC, 96 F.3d 849, 851 (6th Cir. 1996) (party seeking recall "must demonstrate good cause for that action through a showing of exceptional circumstances") ; Sargent v. Columbia Forest Products, ---------------------------------------- Page Break ---------------------------------------- 12 Inc., 75 F.3d 86, 89 (2d Cir. 1996) (recall power must be "exercised sparingly" and is reserved for "exceptional circumstances") ; United States v. Feldman, 830 F.2d 134, 135 (9th Cir. 1987) (recall of mandate is an "extraordinary remedy * * * only granted in cases where it is necessary to serve the interests of justice") ; Johnson v. Bechtel Assocs. Professional Corp. , 801 F.2d 412, 416 (D.C. Cir. 1986) (requiring "exceptional circumstances") . Petitioner has not shown that his are "exceptional circumstances" warranting recall, or that the Tenth Circuit otherwise abused its discretion in denying his recall motion Although some courts have authorized recall where defense counsel fails to notify a defendant of his right to petition for certiorari, see, e.g., United States v. Thomas, 562 F.2d 576, 577 (8th Cir. 1977); Ordonez v. United States, 588 F.2d 448, 449 (5th Cir.) (per curiam), cert. denied, 441 U.S. 963 (1979), petitioner does not claim he lacked notice of his right to petition this Court for review. Rather, petitioner concedes that he had notice of his counsel' s intention to withdraw from his case based on her conclusion that no nonfrivolous claims existed. He also had notice of his right to pursue a pro se petition. In her letter to petitioner shortly after the decision by the court of appeals, counsel advised petitioner that recent changes in the law permitted her to withdraw as counsel, that she would not be filing a petition for certiorari, and that he was free to file a pro se petition if he so desired. Furthermore, although petitioner ---------------------------------------- Page Break ---------------------------------------- 13 now asserts that he did not receive a copy of counsel's motion to withdraw until September 26, 1996, he made no such claim in his petition to recall the mandate. The only two items petitioner claimed in his recall petition not to have received until September 26, 1996, were the court's order granting the withdrawal motion and a letter from counsel informing him of that order. Because petitioner's recall petition stated that he was not transferred to Kansas until July 17 well after he would have received a copy of counsel's withdrawal motion, which was filed on July 1 (Pet. App. 48) the Tenth Circuit had good reason to believe that petitioner had received counsel's withdrawal motion before his transfer to Kansas. Although having notice of his right to file a pro se petition for certiorari and of his counsel' s intention to withdraw, petitioner did not file a timely certiorari petition, seek an extension of time within which to do so, or seek a ruling from the court of appeals to provide him with counsel. Rather, he relied on his view that his appellate counsel was constitutionally required to prepare his petition for certiorari. While petitioner is not expected to have knowledge of the law, he cannot reasonably rely on a legal theory that is at odds with the advice he received from counsel. Given that petitioner has failed to specify any nonfrivolous issues he wishes to raise in this Court, and that the time limits for filing petitions in criminal cases are not jurisdictional, Schacht v. United States, 398 U S. 58, 63-64 (1970), there is no basis to conclude that the Tenth Circuit abused ---------------------------------------- Page Break ---------------------------------------- 14 its discretion in denying petitioner's motion to recall . Accordingly, review of petitioner's claims is unwarranted. 5 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEBORAH WATSON Attorney OCTOBER 1997 5 This Court has denied review in similar cases, even where the defendants did not learn that counsel had failed to petition for writs of certiorari until after. the time to petition had expired. See Buchanan v. United States, No. 93-7724, cert. denied, 512 U.S. 1228 (1994); Hopkins v. United States, No. 93-8423, cert. denied, 512 U.S. 1229 (1994).