Background
Babatunde Johnson appealed from a criminal case in the U.S. District Court for the Northern District of Texas. His appointed Federal Public Defender moved for leave to withdraw and filed a brief under Anders v. California and United States v. Flores, representing that the appeal presented no nonfrivolous issue for review.
Johnson filed a response to counsel’s brief and moved for the appointment of substitute counsel. The Fifth Circuit reviewed counsel’s brief, the relevant portions of the record identified in the brief, and Johnson’s response.
The Court’s Holding
The Fifth Circuit agreed with appointed counsel that Johnson’s appeal presented no nonfrivolous issue for appellate review. It therefore granted counsel’s motion to withdraw, excused counsel from further responsibilities in the matter, and dismissed the appeal under Fifth Circuit Rule 42.2.
The court also denied Johnson’s motion for substitute appointed counsel, citing United States v. Wagner. The disposition was issued per curiam on the summary calendar and was not designated for publication.
Key Takeaways
- An appointed attorney may seek withdrawal under Anders after concluding that a criminal appeal presents no nonfrivolous issue.
- The Fifth Circuit independently reviewed the attorney’s brief, the relevant record portions, and Johnson’s response before dismissing the appeal.
- A defendant is not entitled to substitute appointed counsel merely because existing counsel filed an Anders brief and the court found no nonfrivolous appellate issue.
Why It Matters
The decision illustrates the Fifth Circuit’s procedure for resolving an Anders appeal: the court does not rely solely on counsel’s assessment but reviews the submitted materials before permitting withdrawal and dismissing the case as frivolous.
It also confirms that, once the court agrees no nonfrivolous issue exists, appointing replacement counsel is not required.