In the
United States Court of Appeals
For the Seventh Circuit
No. 06-2094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT A. HAWKINS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois,
Western Division.
No. 04 CR 50028--Philip G. Reinhard, Judge.
ON MOTION TO WITHDRAW AS COUNSEL
AND APPOINTMENT OF NEW COUNSEL
OCTOBER 26, 2007*
*
This opinion is being released initially in typescript form.
No. 06-2094 Page 2
RIPPLE, Circuit Judge (in chambers). This matter is before
me on the motion of appointed counsel to withdraw and on the
motion of Mr. Hawkins for the appointment of new counsel. This
court decided the merits of this direct criminal appeal in United
States v. Hawkins, 499 F.3d 703 (7th Cir. 2007). The deadline for
the defendant to file a petition for a panel or en banc rehearing was
September 11, 2007. Fed. R. App. P. 35(c), 40(a)(1). On that day,
Mr. Hawkins’ appointed counsel instead filed a motion to withdraw
as counsel and requested a thirty-day extension so that Mr. Hawkins
may prepare and file a petition for rehearing on his own behalf. Mr.
Hawkins then filed a motion asking for the appointment of new
counsel. For the reasons set forth in this opinion, I grant the motion
to withdraw and grant the motion for the appointment of counsel.
I
BACKGROUND
After a jury found Mr. Hawkins guilty of robbery affecting
interstate commerce, 18 U.S.C. § 1951(a), of using a firearm in
relation to a crime of violence, id. § 924(c)(1)(A), and of unlawful
possession of a firearm by a felon, id. § 922(g)(1), he was sentenced
to 324 months’ imprisonment. Mr. Hawkins appealed and argued
that the district court violated his right to due process of law by
permitting testimony about a “showup” identification conducted
shortly after his arrest. This court affirmed the convictions. We
held that the identification technique employed during the
investigation was not unduly suggestive and that, in any event, the
identification was reliable.
No. 06-2094 Page 3
II
DISCUSSION
As appointed counsel recognizes, the duties of appointed
counsel in a direct criminal appeal do not end when this court
renders an adverse decision. Counsel still has the obligation to
consider whether to file post-opinion pleadings in the court of
appeals and a petition for a writ of certiorari in the Supreme Court
of the United States. Unless it would be frivolous to do so, counsel
must prepare and file such pleadings. Seventh Circuit Criminal
Justice Act Plan, § V.3; United States v. Price, 491 F.3d 613, 615
(7th Cir. 2007) (Ripple, J., in chambers); United States v. Howell, 37
F.3d 1207, 1209-10 (7th Cir. 1994) (Ripple, J., in chambers).
Mr. Hawkins’ appointed counsel states that she has notified
Mr. Hawkins of his right to file a petition for rehearing in this court
and for certiorari before the Supreme Court and that Mr. Hawkins
insists that the petitions be filed. However, counsel states that in
her professional judgment, there is no reasonable basis for filing
either petition. As she notes, this case was decided primarily on
factual rather than legal grounds, the opinion was without dissent
and it identifies no split of authority that would tend to suggest that
rehearing or Supreme Court review are warranted.
In this ruling, I shall limit my remarks to the situation
currently facing Mr. Hawkins--the filing of a petition for rehearing
in this court. Until that step in the process is completed, it would be
premature to address the filing of a petition for a writ of certiorari.
Appointed counsel is under no obligation to file a petition for
rehearing in every case. United States v. Coney, 120 F.3d 26 (3d Cir.
1997). Appointed counsel is correct in stating that such a decision
must be left to the sound discretion of appointed counsel. Indeed, as
No. 06-2094 Page 4
appointed counsel’s motion intimates, there may well be times when
the filing of such a petition would be frivolous and, therefore, in
violation of counsel’s obligation to the court. Id. at 27. In this case,
however, given the nature of the claim raised on appeal and the
conclusory nature of appointed counsel’s submission, I cannot
accept, at this point, counsel’s submission that a petition for
rehearing would necessarily be frivolous in this case. The motion to
withdraw states in conclusory fashion that there was no dissent from
the panel’s holding, that the case was decided on largely factual, as
opposed to legal, grounds, and that the opinion identifies no split in
authority. Counsel is correct that the fairness of a showup
identification is necessarily a fact-based inquiry, but factual
distinctions in such cases are very important in assessing whether
the procedure was a fair one. The papers before me demonstrate no
effort on the part of counsel to come to grips with existing case law
or with the panel’s analysis. Neither do they demonstrate why a
petition for rehearing necessarily would be frivolous. Cf. Anders v.
California, 386 U.S. 738 (1967); United States v. Schuh, 289 F.3d
968, 973-74 (7th Cir. 2002).
Under these circumstances, the ends of justice will be best
served by granting appointed counsel’s motion to withdraw and by
appointing another counsel to evaluate the case and consult with Mr.
Hawkins. If replacement counsel agrees with the view of present
counsel, replacement counsel may file, with notice to Mr. Hawkins,
a motion to withdraw, and Mr. Hawkins may file, if he wishes, a
response to counsel’s motion. See Cir. R. 51(b).
This action is compatible with the court’s practice in similar
circumstances, see Howell, 37 F.3d at 1210. I emphasize that I do
not mean to discredit, in any way, the professional judgment or
standards of current appointed counsel. Rather, I simply believe
that, given the nature of the issue on appeal in this case, a more
specific showing of the frivolousness of any petition for rehearing is
No. 06-2094 Page 5
necessary before the court can leave a criminal defendant without
counsel at this stage of the proceedings. Since counsel has formed
an opinion about the merits of the case, Mr. Hawkins’ right to
counsel can be better protected by the appointment of another
counsel.
I also emphasize that my ruling today is limited to the petition
for rehearing stage of the proceedings. It would be premature to
address the petition for a writ of certiorari stage at this point.
Accordingly, the motion of appointed counsel to withdraw is
granted. The motion of the defendant for new counsel is granted.
Newly appointed counsel shall have 30 days from the date of
appointment to file either a petition for rehearing or a motion to
withdraw on the ground that any petition would be frivolous.
IT IS SO ORDERED