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John Lavin v. Rednour, 7th Cir No. 10-3318, 4/26/11

7th circuit decision

Habeas – Appeal: Appointed Counsel’s Obligation to Argue Issues

The court clarifies the “scope” of counsel’s responsibilities when appointed on habeas appeal. Counsel has no obligation to argue claims not certified for appeal by the court. Therefore, if after independent review, “counsel agrees that the non-certified claims are not debatable, he or she can safely set aside the non-certified claims notwithstanding the petitioner-appellant’s desire to pursue those claims on appeal.” (Slip op., pp. 2-3)

On the other hand, if appointed counsel concludes that one or more of the non-certified claims is debatable, the appropriate act ion is to ask this court to expand the certificate to include the additional claims. …

Likewise, if counsel believes the certificate contains a claim or claims that do not satisfy the § 2253(c) standard, he or she should inform the court via motion before the start of briefing. … While counsel must make “every effort to identify an issue that does satisfy § 2253(c),” Ramunno, 264 F.3d at 726, and should ask the court to vacate certified claims “only when issuance of the certificate was an obvious blunder,” Davis, 349 F.3d at 1028, an attorney is never required to argue a frivolous claim on appeal simply because a client makes such a request. See United States v. Tabb, 125 F.3d 583, 585-86 (7th Cir. 1997).

The court also clarifies that the Anders )no-merit report) procedure isn’t applicable to collateral attacks:

However, prisoners do not have the right to counsel on collateral review . See Pennsylvania v. Finley, 481 U.S. 551 (1987). And, thus, any tension between a prisoner’s constitutional right to counsel and counsel’s ethical obligations on collateral review sim ply does n ot com e into play.

Although prisoners do not have a right to counsel on collateral review, this court regularly recruits counsel to represent prisoners whose appeals have been certified because the cases are demonstrably colorable and the law is complex. … Thus, we recruit counsel not only to advocate effectively on behalf of the appellant, but to aid the court. … See also United States v. Palmer, 600 F.3d 897, 898 (7th Cir. 2010) (“[A] lawye r submit ting an Anders motion is an officer of the court and is essentially offering an expert opinion.”) (quotation and citation omitted). We expect counsel’s honest and professionally responsible assessment of the case.


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