October 7, 1999

*[CLIENT]

*[ADDRESS]

Re:	United States v. *

Court of Appeals Case No: *

Dear *:

The United States Court of Appeals for the Eleventh Circuit has denied your appeal. Enclosed is a copy of the decision. Court rules require me to advise you that you now have a right to file a petition for rehearing or rehearing en banc in the Eleventh Circuit Court of Appeals, or to petition the U.S. Supreme Court for a writ of certiorari, without prepayment of fees and costs and without filing an affidavit of financial inability to pay such costs, as required by 28 U.S.C. § 1915(a).

However, your right to have a court-appointed lawyer file a petition for rehearing, rehearing en banc, or a petition for writ of certiorari, is limited by the Supreme Court case of United States v. Austin, 115 S. Ct. 380 (1994), and by Addendum Four, sections (f)(4) and (5), of the Eleventh Circuit Plan Under The Criminal Justice Act. The Austin case holds that a court-appointed lawyer is not permitted to file a certiorari petition that contains frivolous claims, and the lawyer may only file a certiorari petition if there are meritorious grounds for certiorari review. Addendum Four, sections (f)(4) and (5), of the Eleventh Circuit Rules, do not permit me to file for further appellate review in your case unless "in counsel's considered judgment sufficient grounds exist." The Eleventh Circuit rule, and excerpts of other related rules, are attached to this letter.

I have carefully considered the issues raised in your appeal and the Eleventh Circuit's decision. In my judgment, there are not sufficient grounds for further review of your case on rehearing, rehearing en banc, or in a certiorari proceeding. In light of the rules, I will not file a petition for rehearing, rehearing en banc, or a petition for writ of certiorari in your case. You are advised that I will not seek further review of your conviction and sentence. My court appointment is now concluded and I will close your file in this case.

I regret that your case did not end more favorably. Good luck.

Sincerely,

ATTACHMENTS:

Opinion of Eleventh Circuit Court of Appeals

Excerpts of Court Rules

Sup. Ct. R. 10

11th Cir. R., Addendum Four, §§ (f)(4) and (5)

Fed. R. App. P. 35(a)

11th Cir. R. 35-3

EXCERPTS OF COURT RULES

Sup. Ct. R. 10. Considerations Governing Review on Writ of Certiorari.

Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons. ...

Addendum Four. Eleventh Circuit Plan Under The Criminal Justice Act.

(f) Duties of Appointed Counsel.

(4) Appointed counsel shall advise the party represented in each case covered by the Act that, if the party wishes to appeal to the court of appeals or file a petition for writ of certiorari with the Supreme Court, the right exists under the Act to do so without prepayment of fees and costs or giving security therefor and without filing the affidavit of financial inability to pay such costs required by 28 U.S.C. § 1915(a).

(5) If the decision of this court is adverse to the client, counsel shall inform the client of the right to file a petition for rehearing or suggestion of rehearing en banc in this court, or to petition the Supreme Court of the United States for a writ of certiorari. Counsel shall file a petition for rehearing, a suggestion for rehearing en banc, or a petition for writ of certiorari if requested to do so by the client in writing, but only if in counsel's considered judgment sufficient grounds exist. Sufficient grounds for requesting rehearing en banc do not exist unless the suggestion would satisfy the standards of FRAP 35(a). See 11th Cir. R. 35-3. Sufficient grounds for filing a petition for writ of certiorari do not exist unless in counsel's considered judgment there are grounds that are not frivolous and consistent with the standards for filing a petition under the rules of the Supreme Court and applicable case law. If counsel concludes that there are not sufficient grounds to seek further review of a type requested by the client, counsel shall so inform the client and shall advise the client that such review will not be sought by counsel. In such circumstances, counsel is not required to move to withdraw.

Fed. R. App. P. 35.	Determination of Causes by the Court En Banc

(a) When Hearing or Rehearing En Banc Will be Ordered. A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless: (1) en banc is necessary to secure or maintain uniformity of its decisions; or (2) the proceeding involves a question of exceptional importance.

11th Cir. R. 35-3.	Extraordinary Nature of Petitions for En Banc Consideration

A petition for en banc consideration, whether upon initial hearing or rehearing, is an extraordinary procedure intended to bring to the attention of the entire court a precedent-setting error of exceptional importance in an appeal or other proceeding, and, with specific reference to a petition for en banc consideration upon rehearing, is intended to bring to the attention of the entire court a panel opinion that is allegedly in direct conflict with precedent of the Supreme Court or this circuit. Alleged errors in a panel's determination of state law, or in the facts of the case (including sufficiency of the evidence), or error asserted in the panel's misapplication of correct precedent to the facts of the case, are matters for rehearing before the panel but not for en banc consideration.

Counsel are reminded that the duty of counsel is fully discharged without filing a petition for rehearing en banc if the rigid standards of FRAP 35(a) are not met, and that the filing of a petition for rehearing en banc is not a prerequisite to filing a petition for writ of certiorari.