CJA Representation

  • Continuing Obligations of Trial Counsel

      Filing the notice of appeal and, if required, a CJA 23 affidavit are continuing duties of trial counsel.

      This court will automatically appoint trial counsel to continue the representation on appeal, unless counsel has filed a motion to withdraw, the defendant is alleging ineffective assistance of counsel, or the notice of appeal was filed pro se and out of time. If trial counsel is not a member of the court's bar, counsel must file an application for admission and register for electronic filing. The attorney admission fee is waived on the basis of trial counsel’s continuing appointment to provide CJA representation.

      If trial counsel believes that appointment of new counsel on appeal is in the best interests of the client and consistent with counsel’s professional skills and obligations, counsel should file a motion to withdraw in the court of appeals. The motion may be filed in paper form if counsel is not a member of the bar or registered for electronic filing and must be served on the defendant. When new counsel is appointed, withdrawing counsel must provide successor counsel with all documents and information relevant to the defendant's appeal.

  • Transcript

      Counsel must order the transcript from the court reporter within 14 days of filing the notice of appeal. A copy of the transcript order must be attached to the docketing statement filed with the court of appeals. Separate transcript orders and separate CJA 24 forms must be completed for each court reporter. The CJA 24 form is submitted to the district court for approval at the same time it is filed with the docketing statement in the court of appeals.

      In criminal appeals seeking review of application of the sentencing guidelines, a transcript of the sentencing hearing must be ordered.

      In criminal appeals under Anders v. California, 386 U.S. 738 (1967), counsel must order a transcript of all proceedings (except opening and closing statements, voir dire, and jury instructions) since the entire record must be reviewed for error.

      Condensed transcript cannot be used in the appendix filed on appeal, and counsel should therefore order full-size transcript. Counsel may generally request the transcript in either electronic or paper format from the court reporter.

      The name of the witness and type of examination must appear in the top margin of each page of witness testimony included in the appendix filed on appeal. Counsel should review transcript when received to ensure it contains the necessary page headings.

      Counsel must redact personal data identifiers (social security numbers; juvenile names; financial account numbers; dates of birth; and, in criminal cases, home addresses) from testimony presented by or on behalf of the parties, opening and closing statements, and sentencing proceedings. Notice of intention to make redactions must be filed in the district court within 7 days of filing of the transcript, and the actual redactions must be filed in the district court within 21 days of filing of the transcript.

  • Records

      The record on appeal consists of the papers and documentary exhibits filed in the district court, the transcript of proceedings, if any, and the docket entries certified by the clerk of the district court.

      The record is available on the district court’s electronic docket without charge to appointed counsel utilizing a fee-exempt PACER account.  CJA counsel should obtain a fee-exempt account from http://www.pacer.gov/ for use in CJA cases. The district court docket report can be accessed as a link from the appellate docket. The “create appendix” option on the docket report enables counsel to combine multiple docket entries for viewing and downloading. To access the transcript during the redaction period, new appellate counsel must be granted access through the district court clerk’s office. Likewise, any sealed documents such as presentence reports or statements of reasons, must be obtained either from district court counsel, the district court clerk's office, or the probation office. For additional information on obtaining access to the record as new appellate counsel, see the link below.

      When all transcript has been filed and the record is complete for purposes of the appeal, a briefing order is entered and sent to counsel.

  • Briefs and Appendix

      Briefs and the joint appendix must conform to Rules 28 through 32 of the Federal and Local Rules of Appellate Procedure. Contact the clerk's office if you have questions about preparation or filing of your brief or appendix. The following points are emphasized:

      • An appellant's pauper status does not lessen his responsibility for preparing and filing the joint appendix. Motions to dispense with the requirement of an appendix and to proceed on the original record are not routinely granted.
      • No appendix should be filed, however, in Anders cases. Since the court must obtain and review the entire record, the cost of preparing and filing copies of a paper appendix are not reimbursable under the Criminal Justice Act.
      • When related appeals have been consolidated, only one brief will be permitted per side, unless good cause is shown. As an exception, if counsel for one defendant intends to file an Anders brief, this attorney should prepare a separate brief and move to deconsolidate the Anders appeal from the cases that are not proceeding under Anders.
      • Double-sided copying must be used for appendices prepared by commercial printers. Single-sided copying is required for briefs. Reimbursement of commercial copy expenses for the appendix is limited to $.35 per double-sided sheet, and the appendix may not exceed 250 sheets of double-sided copying (500 numbered pages) without advance permission of the court. Local Rule 32(a).
      • The Court requires in court-appointed cases that six copies of the brief and five copies of the appendix be filed. Service of paper copies of the briefs and appendix on the other parties to the case is not required if they have been served in electronic form. Therefore, paper service copies are reimbursable only if, as for sealed documents, electronic service was not provided.
      • Counsel should be careful when filing sealed and redacted briefs to use the SEALED BRIEF entry to file the sealed version and to verify the efficacy of counsel’s redaction process before filing the redacted, public version of the brief using the BRIEF entry. Redactions made using versions of Adobe Software earlier than Version 8 can be revealed through a simple cut-and-paste of the redacted section of the brief. Sealed briefs must be served on opposing counsel other than through CM/ECF, since sealed documents are not available to case participants or the public through CM/ECF.
  • Anders Briefs

      Anders v. California, 386 U.S. 738, 744 (1967), states the obligations of court appointed counsel faced with a meritless appeal:

      His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. 

      Anders requires that counsel (1) conduct a conscientious examination of the record and (2) file a brief referring to anything in the record that might support the appeal. Penson v Ohio, 488 U.S. 75 (1988). Accordingly, counsel must order the complete record transcribed, including: pre-trial, trial, guilty plea, and sentencing proceedings. It is not necessary to order arraignments, bail hearings, voir dire, or opening and closing arguments unless those portions of the record might support an arguable issue on appeal. Under Anders, a brief that states only that there are no arguable issues will be deemed insufficient; rather, the brief must point to anything in the record that might arguably support an appeal.

      The brief must cite Anders and must indicate that a copy of the brief was sent to the defendant and that the defendant was informed of the right to raise any additional issues within a reasonable time. The court, in turn, will notify the defendant of the time within which the defendant may raise these additional arguments.

      If the defendant in an Anders case required the services of an interpreter in the district court, appellate counsel should arrange for an interpreter or translator to assist in explaining the Anders process. This should be done by filing a motion asking the court to approve translator or interpreter services under the CJA and by providing an estimate of the total cost of such services. Counsel must also determine whether the defendant wishes to file a pro se supplemental brief and, if so, ask the court to approve an additional amount for translator or interpreter services to translate the brief to English for filing. If the defendant does not wish to file a pro se supplemental brief, counsel should inform the court of this fact.

      When filing the Anders brief, counsel must also provide a certificate stating that the brief has been served on the defendant and the defendant advised of his rights. The court has provided a form for this purpose:

  • Client Communications

      The court occasionally receives complaints from criminal defendants regarding the progress of the appeal, including issues pertaining to counsel. These letters are generally forwarded to counsel for appropriate action. In addition, the court will provide the defendant with the following information:

      • Counsel is obliged to keep the defendant informed of the progress of the appeal and the issues to be pursued, and it is the defendant's duty to cooperate with counsel. The determination of which issues the appeal record will support is within counsel's professional judgment.
      • Counsel shall provide the defendant with a copy of the appeal brief and appendix. Counsel is also authorized to make additional copies of necessary record documents and claim reimbursement of expenses under the CJA up to $75 ($.15 per page for in-house copies).
      • All motions and other requests in the case must be filed with the court by counsel rather than by the defendant.
      • The defendant's dissatisfaction with the issues raised on appeal is not sufficient grounds for a motion to relieve counsel.
      • The defendant's dissatisfaction with the issues raised by counsel is generally not sufficient grounds for filing of a pro se supplemental brief. The defendant has a right to file a pro se supplemental brief only in cases proceeding under Anders v. California, 386 U.S. 738 (1967). In other cases, the defendant may file a motion to file pro se supplemental brief, accompanied by the brief. The court will consider and rule upon any motion to file pro se supplemental brief when the appeal is reviewed on the merits.
  • Oral Argument

      Local Rule 34(a) lists the standards used by the Court in deciding if oral argument will be allowed in a case. If argument is to be heard, counsel are notified well in advance of the argument date and afforded an opportunity to provide the court with any conflict dates. Counsel must register in Room 222 at least a half hour before court starts. Counsel expecting to be assisted at argument by an eligible law student should ensure that the requirements of Local Rule 46(a) are met in advance of the argument date.

      The Court will have studied the briefs and appendix before argument. Points for an effective argument are:

      • Do not argue from a manuscript.
      • Confine argument to the most crucial issues.
      • Do not argue any longer than necessary. If you do not need 20 minutes, do not use 20 minutes.
      • Do not evade a question; admit when a case is against you.
      • Know the record.
  • Decision

      The clerk's office will immediately transmit a copy of the opinion to counsel when it is filed. The clerk’s office also sends a copy directly to the defendant.

  • Rehearing

      Any petition for panel or en banc rehearing must be filed in the clerk's office within 14 days of decision in a criminal case. The clerk’s office accepts pro se petitions for rehearing and/or rehearing en banc. These are typically filed in cases in which counsel considers that such a petition would be frivolous but the defendant wishes to pursue one or more grounds for rehearing. Counsel's duty is fully discharged without filing a petition for panel or en banc rehearing unless, in counsel's judgment, the case meets the rigorous requirements of Local Rule 40(b) for panel rehearing or Fed. R. App. P. 35(b) for en banc rehearing.

  • Certiorari Obligations

      The clerk's office transmits a certiorari status form to counsel when judgment is entered in a criminal or CJA case.  The notice advises counsel of the time period for filing a petition for writ of certiorari and notifies counsel of their obligations under the court’s CJA Plan, § 5,  ¶ 2:

      Every attorney, including retained counsel, who represents a defendant in this court shall continue to represent his client after termination of the appeal unless relieved of further responsibility by this court or the Supreme Court. Where counsel has not been relieved:

      If the judgment of this court is adverse to the defendant, counsel shall inform the defendant, in writing, of his right to petition the Supreme Court for a writ of certiorari. If the defendant, in writing, so requests and in counsel's considered judgment there are grounds for seeking Supreme Court review, counsel shall prepare and file a timely petition for such a writ and transmit a copy to the defendant. Thereafter, unless otherwise instructed by the Supreme Court or its clerk, or unless any applicable rule, order or plan of the Supreme Court shall otherwise provide, counsel shall take whatever further steps are necessary to protect the rights of the defendant, until the petition is granted or denied.

      If the appellant requests that a petition for writ of certiorari be filed but counsel believes that such a petition would be frivolous, counsel may file a motion to withdraw with this court wherein counsel requests to be relieved of the responsibility of filing a petition for writ of certiorari. The motion must reflect that a copy was served on the client.

      The certiorari status form, which must be returned to the clerk’s office within 60 days of decision, confirms counsel’s compliance with these certiorari obligations.