PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3616
CARL SIMON,
Appellant
v.
GOVERNMENT OF THE VIRGIN ISLANDS
On Appeal from the District Court
of the Virgin Islands – Appellate Division
(D. C. No. 3-03-cv-00024)
District Judge: Honorable Daryl D. Donohue
District Judge: Honorable Raymond L. Finch
District Judge: Honorable Curtis V. Gomez
Argued on December 8, 2011
Before: FISHER, GREENAWAY, JR. and ROTH, Circuit
Judges
(Opinion filed: May 9, 2012)
Joseph A. DiRuzzo, III, Esquire (Argued)
Fuerst Ittleman
1001 Brickell Bay Drive
Suite 3200
Miami, FL 33131
Counsel for Appellant
Office of Attorney General of the Virgin Islands
Department of Justice
Tiffany V. Monrose, Esquire (Argued)
34-38 Kronprindsens Gade, GERS Complex, 2nd Floor
Charlotte Amalie
St. Thomas, VI 00802
Counsel for Appellee
OPINION
ROTH, Circuit Judge:
Carl Simon appeals the August 6, 2009 order of the
Appellate Division of the District Court of the Virgin Islands,
affirming the July 18, 2002 judgment of the Territorial Court
of the Virgin Islands, denying post-conviction relief. For the
reasons that follow, we will vacate the order of the Appellate
Division and remand the case for further proceedings.
2
I. BACKGROUND
A. The Crime
In September 1993, Carl Simon, James Roach, and
another individual burglarized a house on St. John. Elroy
Connor and Daniel Ezekiel, one of whom was an occupant of
the house, arrived during the burglary. During an ensuing
altercation, Ezekiel was shot dead. The three assailants fled
the scene with money and other valuables. Simon and Roach
were later separately apprehended.
B. The Trial
On May 25, 1994, a two-count Information was filed
against Simon in the Territorial Court of the Virgin Islands
that charged premeditated murder, in violation of 14 V.I.C. §§
921 and 922(a)(1), and burglary, in violation of 14 V.I.C. §
444(1). The Information was subsequently amended, and the
case proceeded to trial on three counts: felony murder, in
violation of 14 V.I.C. § 922(a)(2) (Count I), robbery in the
first degree, in violation of 14 V.I.C. § 1862(2) (Count II),
and burglary in the third degree, in violation of 14 V.I.C. §
444(1) (Count III).
Augustin Ayala of the Territorial Public Defender’s
Office was appointed to represent Simon. Simon repeatedly
moved to dismiss Ayala, complaining that Ayala would not
return his calls or visit him. In turn, Ayala moved to
withdraw as counsel, expressing difficulties in representing a
“hostile client” and concern that Simon was “plotting some
kind of strategy against me, in that he is going to, at some
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point or the other, claim ineffective assistance of counsel.”
The Territorial Court declined to relieve Ayala each time, and
Simon proceeded to trial with Ayala as counsel.
The trial began on January 23, 1995. Roach, who had
already been separately tried before the District Court of the
Virgin Islands and convicted of first degree murder, testified
at trial on behalf of the government. Roach admitted that he
had committed perjury at his own trial, explained that he had
requested to be placed in solitary confinement because of
death threats by Simon’s brother, and testified that the local
government had promised him protection. Roach also stated
that he had not received any promises from the government
regarding a reduced sentence in exchange for his testimony
against Simon.
Ayala did not give an opening statement, call any
witnesses, or object to closure of the courtroom during
closing arguments and jury instructions. Ayala’s motion for
dismissal pursuant to Fed. R. Crim. P. 29 was denied. In
closing, the government emphasized Roach’s fear of Simon
and stated that Roach “had nothing to gain by being a snitch.
He only had something to lose, his life.” After a two-day
trial, the jury found Simon guilty on all three counts.
On February 22, 1995, Simon was sentenced to a term
of life imprisonment without parole on Count I, seven and a
half years on Count II, and three and a half years on Count
III, all to be served concurrently.
C. Direct Appeal
4
On February 27, 1995, both Ayala and Simon filed a
Notice of Appeal to the Appellate Division of the District
Court of the Virgin Islands. The Appellate Division affirmed
Simon’s conviction on August 20, 1997. On September 22,
1997, Simon filed a pro se Notice of Appeal to this Court.
We dismissed the appeal for lack of jurisdiction because it
was untimely.
Meanwhile, on September 1, 1995, a stipulation to
vacate the first degree murder conviction was filed in Roach’s
case. On June 12, 1996, the United States Attorney’s Office
for the District of the Virgin Islands filed a substantial
assistance motion for the reduction of Roach’s sentence on
the basis of his testimony against Simon. That same day,
Roach pled guilty to second degree murder and was sentenced
to twenty years in prison.
D. Habeas Petition
On February 28, 2000, Simon filed a petition for a writ
of habeas corpus pursuant to 5 V.I.C. § 1301, with the
Territorial Court. It was denied on July 18, 2002. Simon
appealed to the Appellate Division, which appointed Beth
Moss as counsel and issued a briefing schedule on March 5,
2004, amended July 5, 2005. On April 14, 2004, Moss
moved to withdraw pursuant to Anders procedures. The
Appellate Division granted the motion and appointed Carolyn
Hermon-Percell to represent Simon. On September 29, 2005,
Hermon-Percell identified seven possible issues for appeal,
found them to be without arguable merit, and moved to
withdraw pursuant to Anders.
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In September 2007, the Appellate Division, apparently
sua sponte, remanded the appeal to the Superior Court 1 to
determine whether a Certificate of Probable Cause (CPC)
should be issued pursuant to V.I. R. App. P. 14(b). 2 On
February 22, 2008, the Superior Court issued a CPC,
discussing in particular Simon’s claims regarding the
improper amendment of the Information and alleged Brady
violation. The CPC was received by the Appellate Division
on October 2, 2008. On August 6, 2009, the Appellate
Division affirmed the denial of the habeas petition based on
Hermon-Percell’s Anders brief, which it found “adequate on
its face,” and granted Hermon-Percell’s motion to withdraw.
Simon appealed. On December 17, 2010, we issued a
Certificate of Appealability, appointed Joseph A. DiRuzzo,
III as counsel, and directed the parties to address:
the question whether the Appellate Division of the
District Court for the Virgin Islands erred in applying
the procedures of Anders v. California, 386 U.S. 738
(1967), to assess the motions filed by court-appointed
counsel to withdraw from representing Simon on post-
conviction appeal.
1
The Virgin Islands Legislature statutorily changed the
name of the Territorial Court to the Superior Court, effective
January 1, 2005.
2
Rule 14(b) provides that an appeal of the denial of a
habeas petition may not proceed in the Appellate Division
without a CPC.
6
We subsequently denied the government’s motion to dismiss
the case for lack of jurisdiction and directed the parties to
address “any and all jurisdiction issues including the
jurisdictional issue raised by the Government as well as the
District Court’s jurisdiction following remand.”
In the meantime, on July 31, 2009, Simon filed another
petition for a writ of habeas corpus pursuant to 5 V.I.C. §
1301 with the Superior Court, which denied the petition on
September 22, 2010. Simon’s appeal to the Virgin Islands
Supreme Court, for which he is also represented by Joseph A.
DiRuzzo, III, remains pending.
II. DISCUSSION
A. Jurisdiction
The government contends that we lack jurisdiction
because the case before us is a split appeal that raises issues
identical to those raised in the appeal pending before the
Virgin Islands Supreme Court. Because the appeal of the
Appellate Division’s August 6, 2009 order is before us in full,
however, the case before us is not a split appeal within the
meaning of Two Guys From Harrison-Allentown, Inc. v.
McGinley, 273 F.2d 954 (3d Cir. 1954) (holding that Court of
Appeals lacked jurisdiction of a split appeal of an order of a
three-judge court, the constitutional issue having been
appealed to the Supreme Court and the discriminatory
enforcement issue having been appealed to the Court of
Appeals).
We raised sua sponte the issue of whether the
Appellate Division had—and consequently whether we
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have—jurisdiction over this appeal following the remand
from the Appellate Division to the Superior Court in
September 2007. After the Virgin Islands Supreme Court
was created on January 29, 2007, it assumed jurisdiction over
all appeals from the Superior Court, except for those “then
pending” before the District Court. 48 U.S.C. § 1613a(d). A
case remains “pending” before the District Court if the
remand was a record remand, meaning the record was
returned to the Superior Court for a specific purpose, rather
than a case remand, meaning the case was returned to the
Superior Court for all purposes. See Hypolite v. Virgin
Islands, S. Ct. Crim. No. 2007-135, 2009 WL 152319, at *3-4
(V.I. Jan. 21, 2009) (per curiam); see also Martinez v.
Stridiron, S. Ct. Civ. No. 2011-0014, 2011 WL 1483260, at
*4-5 (V.I. Mar. 22, 2011) (per curiam) (discussing record
remands and case remands).
Here, the Appellate Division’s remand to the Superior
Court was for the specific purpose of determining whether a
CPC should be issued. Once the CPC was issued, the
Appellate Division received the appeal back again under the
same appeal number. We conclude, therefore, that the
remand was a record remand and that the Appellate Division
kept jurisdiction of the appeal during the remand. It therefore
had appellate jurisdiction over decisions rendered by the
Territorial Court pursuant to 48 U.S.C. §§ 1613a(a) and
1613a(d). Accordingly, we have jurisdiction pursuant to 28
U.S.C. § 1291 and 48 U.S.C. § 1613a(c).
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B. Anders Procedures
Simon contends that the Appellate Division erred by
applying Anders procedures in the habeas context and by
affirming the Territorial Court’s denial of his habeas petition.
We review legal conclusions de novo and factual findings for
clear error. Pittsburgh League of Young Voters Educ. Fund v.
Port Auth. of Allegheny Cnty., 653 F.3d 290, 295 (3d Cir.
2011).
Under Anders v. California, 386 U.S. 738 (1967),
counsel may seek to withdraw from representing an indigent
criminal defendant on appeal if there are no nonfrivolous
issues to appeal. United States v. Marvin, 211 F.3d 778, 779
(3d Cir. 2000). We exercise plenary review to determine
whether there are any such issues. See Penson v. Ohio, 488
U.S. 75, 80-83 & n.6 (1988). We must determine: 1)
whether counsel adequately fulfilled the requirements of
Third Circuit Local Appellate Rule 109.2(a), and 2) whether
an independent review of the record presents any
nonfrivolous issues. 3 United States v. Coleman, 575 F.3d
3
Third Circuit Local Appellate Rule 109.2(a) states:
“Where, upon review of the district
court record, trial counsel is
persuaded that the appeal presents no
issue of even arguable merit, trial
counsel may file a motion to
withdraw and supporting brief
pursuant to Anders v. California, 386
U.S. 738, 87 S. Ct. 1396, 18 L.Ed.2d
493 (1967), which shall be served
upon the appellant and the United
States. The United States shall file a
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316, 319 (3d Cir. 2009). An appeal on a matter of law is
frivolous where none of the legal points are arguable on their
merits. United States v. Youla, 241 F.3d 296, 301 (3d Cir.
2001).
1. The Appellate Division did not err by
applying Anders procedures in the habeas context
Simon argues that the Appellate Division erred by
applying Anders procedures to allow court-appointed
appellate counsel to withdraw from post-conviction
representation. Simon urges this Court to impose a rule that
would require such an attorney to fully brief the merits of an
appeal of the denial of a habeas petition, even though there is
no constitutional right to counsel in the habeas context.
Anders procedures are meant to protect a defendant’s
constitutional right to counsel. See Pennsylvania v. Finley,
481 U.S. 551, 554-55 (1987). Because that right exists on
direct appeal but not in collateral proceedings, Anders
brief in response. Appellant may also
file a brief in response pro se. After
all briefs have been filed, the clerk
will refer the case to a merits panel.
If the panel agrees that the appeal is
without merit, it will grant trial
counsel's Anders motion, and dispose
of the appeal without appointing new
counsel. If the panel finds arguable
merit to the appeal, it will discharge
current counsel, appoint substitute
counsel, restore the case to the
calendar, and order supplemental
briefing.”
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procedures are not required in the habeas context. See id. at
555, 557 (“Since respondent has no underlying constitutional
right to appointed counsel in state post-conviction
proceedings, she has no constitutional right to insist on the
Anders procedures which were designed solely to protect that
underlying constitutional right.”).
Because Anders procedures afford heightened
protections, however, it is not erroneous to apply them in the
habeas context. Indeed, Anders procedures afford the
petitioner a more careful review of the merits of an appeal
than might occur without an attorney or with a less than
conscientious attorney. Applying Anders procedures in the
habeas context does not deprive the petitioner of anything that
he would be given in any other format. The Appellate
Division did not, therefore, err by applying Anders
procedures in the habeas context.
2. The Appellate Division erred by
finding counsel’s Anders brief sufficient as a matter of law
Simon contends that the Appellate Division erred by
affirming the denial of his habeas petition based on Hermon-
Percell’s Anders brief. We agree.
When the Superior Court issued the CPC, it noted that
“although the grounds for granting habeas corpus are quite
narrow, it appears to the Court that Simon’s amended petition
for habeas relief was not frivolous.” In particular, the
Superior Court discussed Simon’s claims regarding the
improper amendment of the Information and alleged Brady
violation and concluded that “these and other issues raised by
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Simon in his Amended Petition for Writ of Habeas Corpus
are deserving of consideration by the Appellate Division.”
Yet, in affirming the denial of Simon’s habeas petition,
the Appellate Division based its analysis on Hermon-Percell’s
Anders brief, which was filed before the CPC was issued.
The Appellate Division concluded that Hermon-Percell’s
Anders brief was “adequate on its face,” confined its review
to the issues raised therein, and expressly found that the
issues raised were frivolous.
In light of the CPD, however, Hermon-Percell’s
Anders brief was inadequate. For example, with respect to
the alleged Brady violation, according to the record, Roach
was approached by the government to testify against Simon.
In view of that fact, it was inadequate for Hermon-Percell to
fail to explore in her Anders brief the issue of whether there
was a tacit agreement between Roach and the government.
Moreover, although Roach denied having received any
promises from the government regarding a reduced sentence
in exchange for his testimony against Simon, 18 months later
the U.S. Attorney filed a substantial assistance motion to
reduce Roach’s sentence. Even if Hermon-Percell had missed
these significant facts on her review of the case, once the
Superior Court issued the CPC, clearly there was arguable
merit to the appeal. The Appellate Division should then have
ordered briefing on the merits – either by Hermon-Percell or
by substitute counsel, as we would have done pursuant to
LAR 109.2(a).
Because there were nonfrivolous issues that the
Appellate Division should have reviewed on the merits, we
will vacate the Appellate Division’s order and remand the
12
case to the Appellate Division for appointment of new
counsel and full briefing and consideration of the merits.
Issues to be fully briefed on remand should include, but are
not limited to, the issues discussed in the CPC. We note that
Simon has raised other issues before us, such as ineffective
assistance of counsel claims, that counsel may also choose to
address upon remand. We express no view on the merits of
any of the issues raised.
III. CONCLUSION
For the reasons set forth above, we will vacate the
order of the Appellate Division and remand the case for
further proceedings in accordance with this opinion.
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