Notice of Counsel's Post–conviction Obligations — No. 2:21-cr-00043 (Dkt. 11, S.D. Ga.)

Summary

A Notice of Counsel's Post-conviction Obligations, Document 11 filed October 20, 2021 in the Southern District of Georgia (Case 2:21-cr-00043-LGW-BWC), a court form in which defense counsel acknowledges duties after conviction. It covers the duty of continuing representation on appeal under 11th Cir.R. 46-10, the duty to advise a client fully about direct appeal rights and file an appeal on request regardless of merit, citing Roe v. Flores-Ortega and Thompson v. U.S., and the option to file an Anders brief if an appeal is frivolous. It ends with a Post-Conviction Consultation Certification form to be signed by the defendant and counsel and filed within ten business days.

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“Notice of Counsel's Post–conviction Obligations — No. 2:21-cr-00043 (Dkt. 11, S.D. Ga.).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/notice-of-counsel-s-post-conviction-obligations-no-2-21-cr-00043-dkt-1-99f1f2a355/, SHA-256 39a2098621661093c9af95cddefa498ceee7ce549aa930834a2d0a0722f51209.

Full text

Case 2:21-cr-00043-LGW-BWC Document 11 Filed 10/20/21 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA

NOTICE OF COUNSEL'S POST–CONVICTION OBLIGATIONS

1. Duty of Continuing Representation on Appeal:

Retained Counsel: I understand that under 11th Cir.R. 46–10(a), “[r]etained counsel for a criminal
defendant has an obligation to continue to represent that defendant until successor counsel either enters an
appearance or is appointed under the Criminal Justice Act, and may not abandon or cease representation of a
defendant except upon order of the court.” Id.

Appointed Counsel: I understand that under 11th Cir.R. 46–10(c), “Counsel appointed by the trial court
shall not be relieved on appeal except in the event of incompatibility between attorney and client or other
serious circumstances.” Id.

2. Duties Regarding The Filing of Direct Appeals:

I understand that, whether I was retained or appointed to represent my client, I am obligated to fully
advise my client about his direct appeal rights including: advising him about the advantages and
disadvantages of pursuing an appeal, making a reasonable effort to discover his wishes in that regard, and
filing a direct appeal if he so requests, irrespective of any perceived merits of the appeal. See Roe v. Flores–
Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000); Thompson v. U.S., 504 F.3d 1203 (11th
Cir.2007) (counsel has a constitutional duty to adequately consult with his client about an appeal if: (1) any
rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or
(2) this particular defendant reasonably demonstrated to counsel that he is interested in appealing).
Furthermore, I understand that I should not rely upon the sentencing judge's instructions alone to satisfy my
duty to consult with my client, and “[s]imply asserting the view that an appeal would not be successful does
not constitute ‘consultation’ in any meaningful sense.” Thompson, 504 F.3d at 1207. Rather, I must fully
explain to my client the appellate process, the advantages and disadvantages of taking any appeal, and the
fact that I am obligated to file an appeal if that is what my client requests, regardless of my recommendation.
Id.

3. Duty Regarding Frivolous Appeals:

If, after conscientious review of my client's appeal, I find that the appeal is without merit, I am aware of
the option to move the appellate court for leave to withdraw from further representation of the appellant and
file a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See, e.g.,
U.S. v. Dotson, 2008 WL 1946785 (11th Cir.2008) (unpublished) (standard procedure for Anders briefs);
U.S. v. Hall, 499 F.3d 152, 155–56 (2nd Cir.2007) (Anders brief substantive requirements).

4. Duty to Provide Timely Notice of Decisions Impacting Client's Case:

My duties as appellate counsel on direct appeal include my obligation to give the defendant timely notice
of any court decision affecting his case. Smith v. Ohio Dep't of Rehab., and Corr., 463 F.3d 426, 433 (6th
Cir.2006); see also id. at 434 (failure of defendant's counsel to provide him with timely notice of decision of
intermediate appellate court on direct appeal was constitutionally deficient performance).
Case 2:21-cr-00043-LGW-BWC Document 11 Filed 10/20/21 Page 2 of 4
5. Suggested Filing:

I understand that I am duty-bound to not only consult with my client following conviction and sentence,
but also have him or her express, in writing, his or her decision whether or not to appeal.

Rec'd this___day of__________, 20____.

Sign:____________Print_______________, Attorney for Defendant____________________
Case 2:21-cr-00043-LGW-BWC Document 11 Filed 10/20/21 Page 3 of 4
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA

POST–CONVICTION CONSULTATION CERTIFICATION

TO BE COMPLETED AND FILED BY COUNSEL:

I,______________________[print name], attorney for__________________________[print name],

certify that I this day met with my client,__________________________[print name] and:

• I found him/her to be of sound mind, clear-headed, and able to comprehend all of what I advised him/her
regarding his/her right to appeal from the conviction and sentence in this case.

• I have fully explained to him/her the appellate process, including that he/she

(a) has the right to a direct appeal to the Eleventh Circuit, with assistance of counsel,
free of charge, if he/she is indigent, but to exercise that right he/she

(b) must timely file a notice of appeal and

• I have advised him/her about the advantages and disadvantages of pursuing an appeal;

• I have thoroughly inquired of him/her about his/her interest in appealing his/her conviction.

It is in that light that (check one):

____ he/she has decided to file an appeal and thus has instructed me to file it for him/her.

____ he/she has decided not to file an appeal, and I have explained to him/her the consequences of failing
to do so. Those consequences include the waiver of his/her right to complain about the process that
led up to his/her conviction, including in the future, should he/she decide to seek any form of habeas
corpus, 28 U.S.C. § 2255, or other judicial relief from the conviction.

This___day of__________, 20__.

Print:________________________________name of attorney

Sign:_____________________________signature of attorney

Witnessed:
Print:______________________________name of defendant

Sign:___________________________signature of defendant
Case 2:21-cr-00043-LGW-BWC Document 11 Filed 10/20/21 Page 4 of 4

TO BE COMPLETED BY THE DEFENDANT:

I,______________________________[print name], certify that I this day met with my attorney,

_____________________________[print name] and:

• I am of sound mind, clear-headed, and able to comprehend all of what my attorney has advised me about
my right to appeal my conviction and sentence in this case;

• My attorney has fully explained to me the appellate process, including that I

(a) have the right to a direct appeal to the Eleventh Circuit, with assistance of counsel, free of charge,
if I am indigent, but to exercise that right I

(b) must timely file a notice of appeal and

• My attorney has advised me about the advantages and disadvantages of pursuing an appeal;

• My attorney has thoroughly inquired of me about my interest in appealing my conviction.

It is in that light that (check one):

____ I I have decided to file an appeal and thus have instructed my attorney to file it for me.

____ I I have decided not to file an appeal, and my attorney has explained to me the consequences of
failing to do so. Those consequences include the waiver of my right to complain about the process
that led up to my conviction, including in the future, should I decide to seek any form of habeas
corpus, 28 U.S.C. § 2255, or other judicial relief from the conviction.

This___day of__________, 20__.

Print:________________________________name of attorney

Sign:_____________________________signature of attorney

Witnessed:
Print:______________________________name of defendant

Sign:___________________________signature of defendant

FILING: Counsel must file this form in the trial-court record of the defendant's case within ten business
days following its completion. Attach this as the second page of a document bearing the caption of your
client's case with this title: “POST–CONVICTION CONSULTATION CERTIFICATION.”

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