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Eighth Circuit Lets Public Defender Withdraw from BOP Prisoner’s “Frivolous” Appeal

by Matt Clarke

On July 11, 2022, the U.S. Court of Appeals for the Eighth Circuit granted a motion to withdraw from an attorney appointed to represent a federal prisoner in Missouri appealing his civil commitment. Though allowing the appeal was “frivolous,” the Court denied a companion motion to keep the withdrawal under seal, calling that request overbroad. The case is instructive for prisoners with reluctant appointed counsel, demonstrating the current limits of the U.S. Supreme Court’s ruling governing their withdrawal in Anders v. California, 386 U.S. 738 (1967).

The government petitioned to determine whether federal prisoner David Garner’s present mental condition justified involuntary commitment for psychiatric treatment, pursuant to 18 U.S.C. § 4245(a). “After a hearing,” the Court recalled, “the district court ordered Garner committed to the custody of the Attorney General for treatment of a mental disease or defect at the Federal Medical Center in Springfield, Missouri.”

Garner filed a notice of appeal pro se, and the Eighth Circuit appointed counsel from the Federal Public Defender’s Office for the Western District of Missouri. But that attorney said he was unable to find a non-frivolous issue for appeal, leaving him “ethically obligated to withdraw.” However, he moved to keep his withdrawal under seal to protect Garner’s psychological reports that had been used in the motion.

The Court denied the motion to seal, finding no need to shield the entire nine-page motion just to protect two paragraphs referring to Garner’s reports. Besides, the Court added, “public records not infrequently include otherwise private medical information.”

But the motion to withdraw was granted, even though the attorney had not filed a brief outlining his reasons, as laid out in Anders. Acknowledging a circuit split, the Court decided no Anders brief is required in civil commitment cases, since there is no constitutional right to an attorney in such cases. It also left open the option for counsel to file a narrower motion to seal. See: United States v. Garner, 39 F.4th 1023 (8th Cir. 2022).

Garner asked the full Eighth Circuit to rehear his appeal en banc, but he was denied on October 5, 2022. See: United States v. Garner, 2022 U.S. App. LEXIS 27836 (8th Cir.).