Anders in Habeas

In Simon v. Gov’t of the Virgin Islands, No. 09-3616 (May 9, 2012), the Circuit held that an Anders brief may be filed in habeas corpus proceedings but that the Virgin Islands Appellate Division court erred in affirming the denial of post-conviction relief based on an inadequate Anders brief, where the lower court had described certain claims as “non-frivolous” and there wsa arguable merit to the appeal.


In this non-capital habeas case from the Virgin Islands, the Third Circuit addresses the question of whether Anders procedures apply in the habeas context. (Because this case is from the Virgin Islands, this case, unlike most habeas cases reviewed by the Third Circuit, is not governed by 28 U.S.C. § 2254 or § 2241.) The Anders brief was filed on the appeal of Simon’s post-conviction petition in the Virgin Islands courts.

The Third Circuit holds that it is not error to apply Anders procedures in habeas, recognizing that there is no right to counsel in state post-conviction proceedings:

Anders procedures are meant to protect a defendant’s constitutional right to counsel. See Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987). Because that right exists on direct appeal but not in collateral proceedings, Anders procedures are not required in the habeas context. See id. at 555, 557 (“Since respondent has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.”).

Because Anders procedures afford heightened protections, however, it is not erroneous to apply them in the habeas context. Indeed, Anders procedures afford the petitioner a more careful review of the merits of an appeal than might occur without an attorney or with a less than conscientious attorney. Applying Anders procedures in the habeas context does not deprive the petitioner of anything that he would be given in any other format. The Appellate Division did not, therefore, err by applying Anders procedures in the habeas context.

The opinion also holds that the Anders brief in this case was inadequate as a matter of law, and therefore reverses and remands. It was inadequate because there were issues of arguable merit including a Brady issue, and the trial court had indicated as much by filing a “certificate of probable cause” (similar to a COA) after denying relief. The court vacates and remands for full briefing on the merits.

Maria Pulzetti, EDPa