from the United States District Court for the Southern
District of Illinois No. 96-cr-40051-SMY - Staci M. Yandle,
CHIEF JUDGE, IN CHAMBERS
Durham is seeking to appeal from the district court's
order revoking his supervised release and imposing a sentence
of an additional 30 months in prison. Durham's supervised
release relates to his conviction for conspiring to
distribute and possessing with intent to distribute cocaine
and cocaine base. For purposes of the proceedings in the
district court, a magistrate judge had found that Durham was
"financially unable to retain counsel/' as required
by 18 U.S.C. § 3OO6A(b). Initially, Durham was
represented by a court-appointed lawyer, but before the
revocation hearing, that lawyer withdrew with the court's
permission. Durham was represented by retained counsel at the
hearing. After the hearing, the court allowed retained
counsel to withdraw. Durham then filed a motion pro
se to proceed in forma pauperis (IFP) on
appeal-a request he needed to make, because during the time
he was able to engage retained counsel he was presumably also
able to pay. His IFP status thus lapsed when appointed
counsel left the case, see Fed. R. App. P. 24(A)(3). In
support of his new motion, he cited his renewed inability
"to retain counsel and pay for the costs attendant to
court denied Durham's pro se motion, finding
that he had provided an incomplete financial affidavit. It
singled out his failure "to attach a certified statement
showing all receipts, expenditures, and balance during the
last six months for his institutional accounts." The
record currently before me does not reveal for how much of
that six-month period Durham had been incarcerated, given
that he had been on supervised release, but that detail does
not matter for present purposes.
after the district court issued that order, this court
appointed the Federal Defender's Office for the Central
District of Illinois for the limited purpose of re-filing in
the district court a proper motion to proceed IFP on appeal.
An attorney from that office did so, but to no avail. In
response to counsel's motion, the district court again
denied IFP status. In so doing, it cited 28 U.S.C. §
1915(a)(1) and Federal Rule of Appellate Procedure 24(a)(1).
Applying the standards set out in those sources, the court
determined that Durham had $750 in his prison account and
thus could not show that he was "unable to pay the costs
of commencing his appeal." (The filing fee for an appeal
is currently $505.) In addition, citing 28 U.S.C. §
1915(a)(3), the court ruled that Durham's appeal was
frivolous, because he had "not articulated any argument
to suggest that the court revoked his supervised release in
error." Counsel has now renewed her motion in this
court; she again argues that Durham does not have the
financial ability to hire an attorney.
problem with the district court's disposition of
Durham's two motions relates to the applicable standard.
Durham is not trying to bring a civil appeal, which would be
governed by the general IFP statute, 28 U.S.C. § 1915.
Instead, he is seeking to proceed under the Criminal Justice
Act, 18 U.S.C. § 3006A, which provides as follows in
shall be provided for any financially eligible person who-
... (E) is charged with a violation of supervised release or
faces modification, reduction, or enlargement of a condition,
or extension or revocation of a term of supervised release.
Id. § 3006A(a)(1)(E). Moreover, the Criminal
Justice Act specifies that there must be a plan for
"furnishing representation for any person
financially unable to obtain adequate
representation." Id. § 3006A(a) (emphasis
added). These are different standards from the ones that
apply to all litigants who seek the right to proceed without
prepayment of costs and fees, and who do not as a
rule have a right to appointed counsel. The general run of
litigants have only the opportunity to ask the court to
attempt to recruit counsel for them. See Pruitt v.
Mote, 503 F.3d 647 (7th Cir. 2007) (en banc).
Criminal Justice Act cases, just as in civil cases, the party
seeking the right to proceed IFP must first file a motion
with the district court. Durham did so, twice. If the
district court denies that motion, the person may renew his
request in this court. See Fed. R. App. P. 24(a)(4), (5). In
cases governed only by section 1915, the district court is
required to screen the case before granting the privilege to
proceed without prepayment of fees. See 28 U.S.C. §
1915(e)(2). If it concludes (among other things) that the
action or appeal is frivolous or malicious, the court must
dismiss the case. Id. §1915(e)(2)(B)(i).
language is conspicuously missing from the Criminal Justice
Act. And it is easy to see why. In most of the instances
covered by that Act, the right to counsel flows from the
Sixth Amendment to the Constitution. I recognize that
proceedings involving the revocation of supervised release do
not as a rule fall within the Sixth Amendment's
protection, see Gagnon v. Scarpelli, 411 U.S. 778,
790 (1973), but there is no need to worry about the
Constitution when the statute gives such a clear right to
counsel. Sensitive to the balance between the duty of counsel
to refrain from pursuing frivolous appeals and the rights of
the defendant, the Supreme Court has dictated a different
approach to that problem. In Anders v. California,
386 U.S. 738 (1967), the Court ruled that an attorney who
found a case to be wholly frivolous should so advise the
court and seek permission to withdraw. Id. at 744.
But-and this is a big qualification-counsel must
"accompany[y] [that request] by a brief referring to
anything in the record that might arguably support an
appeal." Id. The indigent client must receive a
copy of that brief and be given the chance to raise with the
court any points he chooses. Id. Even though we are
not compelled to do so for revocations of supervised release,
given Scarpelli, as a matter of discretion this
court follows the Anders procedures for those
proceedings, since the Anders system has proven to
be an effective way to weed out hopeless appeals. See
United States v. Brown, 823 F.3d 392, 394 (7th Cir.
noted earlier, the Criminal Justice Act asks only if the
defendant is "financially unable" to obtain
adequate representation; that standard applies to revocations
of supervised release. See United States v.
Martin-Trigona, 684 F.2d 485, 489-90 (1982); United
States v. Kelly, 467 F.2d 262, 266 (7th Cir. 1972). The
Act addresses criminal actions and appeals specifically, and
thus its terms control over the more general ones found in
section 1915. The Ninth and Tenth Circuits share this view of
the two statutes. United States v. Dangdee, 608 F.2d
807 (9th Cir. 1979); United States v. Osuna, 141
F.3d 1412 (10th Cir. 1998). Although the Fifth Circuit has
taken the opposite position, see United States v.
Boutwell, 896 F.2d 884 (5th Cir. 1990), it is notable
that Boutwell was concerned about giving rights to
indigent defendants that more affluent defendants did not
have. Should this court face such a problem in the future, I
am certain that we would address it. But in the typical case
of an indigent criminal defendant, it is not likely to arise.
People who have no need to invoke section 1915 will not face
dismissal under section 1915(e); those who are indigent
enough to qualify under section 1915(a) will likely also be
financially unable to pay for a lawyer for purposes of the
Criminal Justice Act.
now, the law in this circuit is well established. The
Criminal Justice Act directs that counsel be appointed to
represent a financially eligible person who meets any of the
criteria of 18 U.S.C. § 3006A(a)(1). The criterion that
applies to Durham is the revocation of supervised release.
Id. § 3006A(a)(1)(E). As the Seventh Circuit
Criminal Justice Act Plan puts it, "In determining the
need for appointment of counsel under the Act, the Courts
[within the Seventh Circuit] shall not be governed by a
requirement of indigence on the part of the defendant, but
rather by his financial inability to employ counsel ...
." Seventh Circuit Plan, Part III.3, "Determination
of Need for Appointment of Counsel." The standards for
IFP eligibility contained in 28 U.S.C. § 1915(a) should
have played no role in resolving Durham's motion. See
generally 16AA Charles Alan Wright et al.,
"Standard for Proceeding In Forma Pauperis,"
FEDERAL PRACTICE & PROCEDURE § 3970.1 at 144-45 (4th
addition, the Criminal Justice Act does not permit district
courts to appoint counsel only for defendants whose appeals
the court deems not to be frivolous or taken in bad faith.
The Anders procedures are available, should counsel
come to that conclusion. As the court put it in
Osuna, "[t]he determination of the
frivolousness of a direct criminal appeal is the