Unreported / Non-Citable
Background
Fermin Hernandez-Mora was convicted in the United States District Court for the Eastern District of Texas (Case No. 4:22-CR-241-1). His court-appointed counsel subsequently sought to withdraw from the appeal, filing a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). The Anders procedure permits appointed counsel to withdraw when, after a conscientious review of the record, counsel concludes the appeal presents no nonfrivolous issue for appellate review.
Hernandez-Mora filed a pro se response to counsel’s brief. The Fifth Circuit independently reviewed both counsel’s Anders brief and the relevant portions of the record, as well as Hernandez-Mora’s response, to determine whether any arguable grounds for appeal existed.
The Court’s Holding
A per curiam panel of Judges Jones, Duncan, and Douglas agreed with appointed counsel’s assessment that the appeal presented no nonfrivolous issue for appellate review. The court accordingly granted counsel’s motion for leave to withdraw, excused counsel from further responsibilities in the matter, and dismissed the appeal pursuant to Fifth Circuit Rule 42.2.
The court also denied Hernandez-Mora’s motion to appoint new counsel, finding it untimely under United States v. Wagner, 158 F.3d 901, 902–03 (5th Cir. 1998). The opinion was issued as an unpublished summary calendar decision.
Key Takeaways
- Where appointed counsel files a compliant Anders brief and the court independently finds no nonfrivolous appellate issues, the Fifth Circuit will grant withdrawal and dismiss the appeal.
- A defendant’s pro se response to an Anders brief will be considered by the court but does not automatically identify a meritorious ground for appeal.
- A motion to appoint substitute counsel filed after the Anders process is already underway may be denied as untimely under Fifth Circuit precedent.
Why It Matters
This decision is a routine application of the Anders framework, which balances a criminal defendant’s Sixth Amendment right to counsel against appointed counsel’s ethical obligation not to advance frivolous arguments. It reinforces that the Fifth Circuit’s independent review of the record under Anders is the procedural safeguard against unjust dismissals, and that defendants who wish to contest an Anders withdrawal must act promptly if they seek substitute counsel.
While the case carries no precedential weight as an unpublished decision, it illustrates the practical finality of the Anders process for defendants in the Fifth Circuit whose counsel identifies no viable appellate issues after reviewing the trial record.