According to the fine folks at SCOTUSBlog,
the U.S. Supreme Court grants certiorari in approximately 80 cases each year.
Nearly 8,000 litigants petition the Court for review. And so, the odds that the
Supreme Court will grant certiorari in any particular case are extremely poor—somewhere
around a 1% chance, according to one
estimate. Those chances are even
lower if the petitioner must file the petition in forma pauperis, i.e.,
a motion for permission to file without paying the Court’s filing fee. This can
leave counsel appointed under the Criminal Justice Act
to represent criminal defendants on appeal feeling like filing a petition for
certiorari is a waste of time even when the client wishes to do so.
In an unpublished order, in United
States v. Givhan, the Sixth Circuit reminded all CJA appointees that,
even though counsel need not file a frivolous petition for certiorari, they
must follow a certain protocol before they may withdraw. Counsel must inform
the defendant of his or her right to file a petition and file a certification
that, after reviewing the records, “there exist no non-frivolous grounds for
appeal.” In Givhan’s counsel did not
follow this required procedure.
The Sixth Circuit’s reminder raises the question: Why not
file a petition for certiorari? If the Supreme Court can change the law, are
there any claims that are non-frivolous? Sometimes writing a certification
takes as much time to draft as a petition for certiorari. Plus, who knows?
Maybe you can be like the defense lawyers who have prevailed against all odds
before. The modern Commerce Clause jurisprudence would not be what it is
without the efforts of two Federal Public Defenders who happened to catch the
Supreme Court’s eye in United
States v. Lopez.
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