United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 25, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50918
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC POWELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, SMITH and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Because this court lacks jurisdiction in this case, we dismiss petitioner’s claims. We also hold
that court-appointed counsel are not required to file Anders briefs in frivolous appeals from non-
appealable orders.
FACTUAL AND PROCEDURAL BACKGROUND
Isaac Powell was under supervised release arising out of a previous counterfeit security
conviction when the government requested a blood sample pursuant to the DNA Act. Powell initially
refused, but after discussions with the district court judge who warned Powell that if he did not
submit the blood sample he could face revocation of his supervised release, he relented and provided
the sample to the government. Powell challenges the constitutionality of the DNA Act in this appeal.
DISCUSSION
Powell challenges the constitutionality of the DNA Act which, despite Powell’s attempted
arguments to the contrary, is well settled. See Groceman v. United States Dep’t of Justice, 354 F.3d
411, 413 (5th Cir. 2004).
Because Powell appeals from a non-appealable order, this court lacks jurisdiction. Federal
appellate courts have jurisdiction over three types of appeals: (1) final orders, 28 U.S.C. § 1291; (2)
certain specific types of interlocutory appeals, 28 U.S.C. § 1292(a); and (3) an appeal in which the
district court has certified the question as final pursuant to Fed. R. Civ. P. 54(b), 28 U.S.C. §
1292(b). See Dardar v. Lafourche Realty Co., Inc., 848 F.2d 955, 957 (5th Cir. 1998).
Powell’s attorney has filed an Anders brief. Anders v. California, 386 U.S. 738 (1967), set
guidelines for when court-appointed attorneys can withdraw from frivolous appeals. Court-appointed
attorneys who wish to withdraw because they represent indigent clients who want to pursue frivolous
appeals must undertake a “conscientious” examination of the case, request permission to withdraw
and, submit a “brief referring to anything in the record that might arguably support the appeal.”
Anders, 386 U.S. at 744.
There is no Anders duty in situations such as this where defendant seeks an appeal of a non-
appealable order over which this court has no jurisdiction. Such situations implicate none of the
concerns underlying the Anders framework as no jurisdiction for an appeal even exists. Additionally,
the duty to fulfill the Anders requirements is only recognized in situations where defendants have a
constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Thus, court-
appointed counsel can withdraw in situations like these without fulfilling the requirements of Anders.
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CONCLUSION
The appeal is DISMISSED for lack of jurisdiction.
DISMISSED.
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