Under the Criminal Justice Act of 1964, 18 U.S.C. § 3006A, Federal criminal defendants are entitled to the appointment of counsel if they are unable to obtain adequate representation “at every stage of the proceeding from initial appearance through appeal.” State and Federal courts have long interpreted the words “through appeal” to include most challenges to criminal convictions – including certiorari proceedings in the Supreme Court.
Attorneys appointed by a lower court pursuant to the CJA generally have the duty to: (1) process the original (lower court) appeal, (2) advise the party of his or her right to seek certiorari, and (3) prepare and file a petition for certiorari in the Supreme Court, upon the party’s request. See 36 F.R.D. 277, 291 (1965).
CJA-appointed attorneys who plan to file a Supreme Court petition should proceed in forma pauperis, wherein the Court allows an indigent party to file a petition without paying the $300 filing fee or preparing printed booklets. Pursuant to Sup. Ct. R. 39, such counsel must file a motion to for leave to proceed IFP in the Supreme Court, and do not need to file a notarized affidavit of indigency or poverty (unlike most IFP filers). The motion to proceed IFP should cite the statute under which counsel was appointed – 18 U.S.C. § 3006A.
If the Court grants certiorari in an IFP case, it will pay for the cost of printing the party’s merits stage briefing and joint appendix. The Court also typically reimburses appointed counsel for his or her expenses in accordance with the CJA.
Special CJA Filing Notes
- Supreme Court rules to read:
- Rules 10-14 (Petitioning for certiorari)
- Rule 30 (Computation and extension of time)
- Rule 39 (Proceeding IFP)
- Rules 33.2 and 34 (8 ½ by 11-inch format briefs)
- What to file:
- One signed original and 10 copies of a motion for leave to proceed IFP.
- One signed original and 10 copies of a petition for a writ of certiorari with an appendix.
These pages should be stapled together in the above order. On a detached sheet, include one affidavit or declaration showing that all opposing parties or their counsel have been served with a copy of the above papers.
- What to know:
- Admission to the Supreme Court Bar is not required for an attorney appointed under the CJA.
- The principal exception to the “no-affidavit” provision above, according to Supreme Court Practice, Ninth Edition, is found in cases in which counsel has been appointed by the District of Colombia Court of Appeals or the Superior Court of the District of Columbia. See Robert L. Stern and Eugene Gressman: Supreme Court Practice, Ninth Edition (2007).