Graves v. McEwen, No. 10-17203 (9-24-13)(Hurwitz with Graber and Bea).

Lets get rid of the suspense up front: the petitioner loses. But how he loses his hopeless appeal is important in a sixth amendment Anders context. Does a lawyer, representing a petitioner in a 2254 with a COA, but finding no colorable or meritorious issues, withdraw through an Anders motion and brief; or does counsel just file a motion to withdraw? The state wanted the latter: just file a motion. Its argument was that Anders protects the constitutional requirement of counsel; but in a habeas appeal, there is no constitutional right to counsel. The 9th declined the state's constitutional argument, because the 9th held the circuit rule controls. The circuit rule, 9th Cir. R. 4-1(c)(6), requires an Anders brief. Surprisingly, circuits have split and there is also inconsistent approaches in memorandum decisions in the 9th. The panel however relies on the circuit rule, finding it covers direct appeals and also habeas appeals. There are good policy reasons moreover to ensure that counsel briefs the issues, especially when there is a COA. Here, the district court issued a COA for five issues. Counsel did an Anders brief on all of them, plus two non COA issues. The 9th agrees that there was no colorable issues, permits the Anders brief, affirms the conviction, and grants the motion to withdraw.