United States v. Marcus Durham
United States v. Marcus Durham
Opinion
Marcus 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. § 3006A(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 the proceedings."
The 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 *846 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.
Shortly 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
The 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,
Representation 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.
In 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
That 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,
As I 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
,
For 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.
In 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 responsibility of the court of appeals in its determination on the merits of the appeal."
For these reasons, I hereby GRANT Durham's motion for leave to proceed in *848 forma pauperis in his appeal from the district court's revocation of his supervised release.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Marcus C. DURHAM, Defendant-Appellant.
- Cited By
- 11 cases
- Status
- Published