Unreported / Non-Citable
Background
Joshua Alexander Johnson appealed from a criminal case in the U.S. District Court for the Eastern District of Texas. His appointed appellate attorney moved to withdraw and filed a brief under Anders v. California and United States v. Flores, representing that the appeal presented no nonfrivolous issue.
Johnson filed a response to counsel’s brief and moved for appointment of substitute counsel. The Fifth Circuit reviewed counsel’s brief, the relevant portions of the record, and Johnson’s response.
The Court’s Holding
The Fifth Circuit agreed with appointed counsel that the appeal presented no nonfrivolous issue for appellate review. It granted counsel’s motion to withdraw, excused counsel from further responsibilities, and dismissed the appeal under Fifth Circuit Rule 42.2.
The court also denied Johnson’s motion for appointment of substitute counsel, citing United States v. Wagner. The per curiam opinion was designated as unpublished.
Key Takeaways
- An appellate court reviewing an Anders filing independently examines counsel’s submission, relevant record materials, and any response from the defendant.
- The Fifth Circuit found no nonfrivolous appellate issue and dismissed Johnson’s appeal.
- The court permitted appointed counsel to withdraw and declined to appoint substitute counsel.
Why It Matters
The decision illustrates the Fifth Circuit’s procedure when appointed counsel concludes that a criminal appeal lacks any nonfrivolous issue. Counsel’s assessment did not itself end the case; the panel conducted its own review before allowing withdrawal and dismissing the appeal.
It also confirms that a defendant is not entitled to substitute appellate counsel merely because existing counsel files an Anders brief when the court’s independent review identifies no nonfrivolous basis for appeal.