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Thursday, July 05, 2007

Ind. Decisions - 7th Circuit chambers opinion appoints counsel to assist in filing cert petition

In U.S. v. Price (ND Ind., James T. Moody, Judge). a 5-page ruling on a motion for appointment of counsel dated 7/3/07, Judge Ripple (in chambers) writes:

Terraun Price has filed a motion for the appointment of counsel to assist him in filing a petition for certiorari in the Supreme Court of the United States, seeking further review of the judgment of this court. ... For the reasons set forth in this chambers opinion, the mandate of this court is recalled and new counsel is appointed to assist Mr. Price in filing a petition for certiorari in the Supreme Court of the United States. * * *

Although Mr. Price does not have a constitutional right to counsel while seeking certiorari, Ross v. Mofitt, 417 U.S. 600, 617 (1974), he does have a statutory right based on the Criminal Justice Act, 18 U.S.C. § 3006A. Wilkins v. United States, 441 U.S. 468, 469 (1979) (per curiam). See also United States v. Howell, 37 F.3d 1207, 1209 (7th Cir. 1994) (Ripple, J., in chambers). Indeed, the Seventh Circuit Criminal Justice Act Plan requires an appointed attorney to prepare and to file a petition for a writ of certiorari if, after consultation, the represented person requests it and there are reasonable grounds for counsel properly to do so. See Seventh Circuit Plan, V.3. If counsel concludes that reasonable grounds do not exist, counsel must promptly inform the defendant, and the defendant may request this court to order counsel to seek certiorari. * * *

Based on Mr. Price’s motion and counsel’s response, I must conclude that appellate counsel did not comply with his obligations under the Seventh Circuit Criminal Justice Act Plan. Counsel’s first letter, fairly read, advised Mr. Price that counsel was preparing to file a petition for certiorari: “We will begin the process and let you know the outcome as soon as possible.” Mr. Price was not informed that counsel had not filed a petition until he made his later inquiry. Mr. Price, therefore, was unable to ask this court to order counsel to seek certiorari. * * *

At this point, when there has been no meaningful consultation between counsel and the defendant, it would be premature for me to say whether a petition would be warranted. At the very least, Mr. Price has the right to consult with counsel about the appropriateness of filing a petition for a writ of certiorari. Accordingly, the mandate of this court is recalled. New counsel will be appointed. Counsel may file, within 14 days of appointment, a petition for rehearing in this court. Alternatively, counsel may elect to file immediately a petition for certiorari in the Supreme Court. If counsel, after consultation with Mr. Price, determines that it would be inappropriate to file a petition for certiorari, he must communicate that appraisal to Mr. Price so that he can ask, if he chooses, this court to determine whether it should order that such a petition be filed.

Posted by Marcia Oddi on July 5, 2007 12:59 PM
Posted to Ind. (7th Cir.) Decisions