Notice to Retained Criminal Defense Attorneys — No. 4:23-cr-00029 (Dkt. 5, S.D. Ga.)

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A Notice to Retained Criminal Defense Attorneys filed March 29, 2023 as Document 5 in USA vs. Jacqueline Somesso, No. 4:23-cr-00029-RSB-CLR, in the U.S. District Court for the Southern District of Georgia. The form notice states that retained counsel are expected to make financial arrangements sufficient to represent the defendant until the conclusion of the case, including any direct appeal, and that withdrawal must be approved by a judge of the court. It provides that if a defendant seeks to proceed on appeal in forma pauperis or for appointment of Criminal Justice Act appellate counsel, retained counsel must disclose the fees and costs paid, by whom and how they were paid, and the services rendered. The 7-page filing also includes a post-conviction consultation certification form for counsel and the defendant to sign.

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Case 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 1 of 7

CR 4:23-029-001

USA vs. Jacqueline Somesso

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA

NOTICE TO RETAINED CRIMINAL DEFENSE ATTORNEYS

Retained criminal defense attorneys are expected to make financial arrangements satisfactory to
themselves and sufficient to provide for representation of each defendant until the conclusion of the
defendant’s case. An attorney’s appearance on behalf of a party constitutes an affirmative representation
of the fulfillment of such expectation. Counsel’s withdrawal from a pending case must be approved by a
judge of this court. Once an appearance by counsel is made, the court will expect counsel to represent the
defendant until the conclusion of the case. Ordinarily, a defendant’s failure to pay sums owed for
attorney’s fees or counsel’s failure to collect a sum sufficient to compensate for all services will not
constitute good cause for withdrawal. Moreover, counsel are reminded of the DIRECTORY RULES of
the State Bar of Georgia as a further explanation of the Canons of Ethics. [See, e.g., DR 2-110 (C)(1)(f#) ].
A mere failure to pay an attorney does not amount to a client’s deliberate disregard of an obligation to a

lawyer as to expenses and fees.

Every defendant has a right to appeal from any conviction; therefore, a convicted defendant’s case is
not concluded until his direct appeal is decided. Thus, the further expectation of this court and the United
States Court of Appeals for the Eleventh Circuit is that retained counsel, in making satisfactory financial
arrangements, will contemplate services to be rendered upon appeal.

If a defendant moves the court to proceed on appeal in forma pauperis and/or for appointment of

Criminal Justice Act appellate counsel, retained counsel will be required to disclose (1) the total amount
of fees and costs paid, (2) by whom fees and costs were paid, (3) the method of any such payment, and (4)
the costs actually incurred and the services actually rendered. [Note that matters involving the receipt of
fees from a client are not generally privileged, United States v. Sims, 845 F.2d 1564 (11" Cir. 1988); In
Re Slaughter, 694 F.2d 1258 (11™ Cir. 1982); In Re Grand Jury Proceedings: United States v. Jones, 517
F.2d 666 (5" Cir. 1975). ] Unless otherwise ordered by the court, all information submitted will be viewed
in camera unless otherwise ordered by the court for the purpose of deciding the defendant’s in forma

pauperis motion.
Except in extraordinary circumstances, this policy will be strictly applied. Any such extraordinary

circumstances shall be brought to the court’s attention by emergency motion for withdrawal of counsel.

COPY TO BE SERVED UPON EVERY RETAINED LAWYER; FILE A COPY AND NOTE SERVICE
THEREON.
Case 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 2 of 7

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), “[rJetained 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.” Jd.

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.” Jd.

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 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 3 of 7
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 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 4 of 7

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA

POST-—CONVICTION CONSULTATION CERTIFICATION

TO BE COMPLETED AND FILED BY COUNSEL:

L [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
(c) comply with all appellate form-completion and briefing obligations;

* 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

page |
Case 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 5 of 7

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
(c) comply with all appellate form-completion and briefing obligations;

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

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.”

page 2
Case 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 6 of 7

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA

POST-CONVICTION CONSULTATION CERTIFICATION

(APPEAL WAIVED)

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:

This

rev. 11/2022

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 that as a consequence of the waiver provisions of the plea
agreement, he/she no longer has the right to a direct appeal to the Eleventh Circuit except for
those exceptions outlined in the waiver provisions of the plea agreement;

If the plea agreement contains exceptions to the appeal waiver and one or more exceptions apply
to this case, then check here and continue below:

I have advised him/her that an exception to an appeal applies to his/her case and about the
advantages and disadvantages of pursuing an appeal;

I have thoroughly inquired of him/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.

day of , 20

Print: (name of attorney)

Sign: (signature of attorney)

Witnessed:

Print: (name of defendant)

Sign: (signature of defendant)

page 1
Case 4:23-cr-00029-RSB-CLR Document5 Filed 03/29/23 Page 7 of 7

TO BE COMPLETED BY THE DEFENDANT:

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

[print name of attorney] and:

e lam 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;

e Myattorney has fully explained to me that as a consequence of the waiver provisions of the plea
agreement, I no longer have the right to a direct appeal to the Eleventh Circuit except for those

exceptions outlined in the waiver provisions of the plea agreement;

e My attorney has advised me that an exception to an appeal waiver applies to my case and about the
advantages and disadvantages of pursuing an appeal;

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

It is in that light that (check one):
I have decided to file an appeal and thus have instructed my attorney to file it for me.

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.

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 (10)
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”.

rev. 11/2022 page 2


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