Anders Briefs

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

What is an Anders brief?

An Anders brief is a filing in which your own appointed appellate lawyer tells the court your appeal is frivolous and asks to withdraw. It is not the end of your appeal. You have the right to file your own response raising any points you choose, and the court — not your lawyer — must independently examine the whole record before deciding.

Key takeaways on Anders briefs

• An Anders brief comes from your lawyer, and it says there is no non-frivolous issue in your case.
• Counsel cannot simply withdraw. The request “must … be accompanied by a brief referring to anything in the record that might arguably support the appeal” — Anders v. California, 386 U.S. 738 (1967).
• You must be given a copy and time to raise any points you choose. This is the most important sentence on this page.
• The court then conducts “a full examination of all the proceedings” itself.
• Under Penson v. Ohio, 488 U.S. 75 (1988), the court should not grant withdrawal before making its own examination of the record.
• If the court finds any arguable issue, it does not simply affirm — the appeal proceeds, ordinarily with counsel.

What Anders requires, step by step

The whole framework comes from a single passage in Anders v. California, 386 U.S. 738 (1967). It is short enough to quote in full, and worth reading closely because every obligation on this page is in it:

“If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.”

Broken into its parts:

Step	Who acts	What is required	Authority
1. Conscientious investigation	Appointed counsel	Counsel must actually examine the record before concluding the appeal is frivolous	Anders, 386 U.S. 738
2. Motion to withdraw	Appointed counsel	Counsel “may ask to withdraw on that account”	Anders
3. The brief	Appointed counsel	The request “must … be accompanied by a brief referring to anything in the record that might arguably support the appeal”	Anders
4. A copy to the client	Appointed counsel / the court	“A copy of counsel’s brief should be furnished the indigent”	Anders
5. Time to respond	The court	“time allowed him to raise any points that he chooses”	Anders
6. Independent record review	The court, not counsel	“the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous”	Anders
7. Order of operations	The court	The court should not act on the withdrawal motion before making its own examination	Penson v. Ohio, 488 U.S. 75 (1988)
8. If any issue is arguable	The court	The appeal proceeds on the merits rather than being dismissed	Anders; Penson

Step 6 is what makes an Anders brief different from a lawyer simply quitting. The court takes on an independent obligation to read the record. Your lawyer’s conclusion is not the court’s conclusion.

Applied Insight — Elizabeth Franklin-Best, Esq., Principal Attorney: The word doing the most work in Anders is “frivolous,” and it does not mean what most clients hear. Frivolous is not “unlikely to win.” It is “no arguable basis in law or fact.” Plenty of appeals that will almost certainly lose are not frivolous, and the gap between those two categories is exactly where a disagreement with an Anders brief lives.

“No merit” is not the same as “hard to win”

This distinction is the reason a client’s instinct that something is wrong is often correct.

	Frivolous	Weak but non-frivolous
Definition	No arguable basis in law or fact	An arguable issue that is likely to lose
Example	Challenging a sentence that is plainly within the statutory range on no identified legal ground	An unpreserved instructional error reviewed for plain error
What counsel may do	File an Anders brief and move to withdraw	Brief it — counsel is not permitted to abandon a non-frivolous issue merely because it is weak
What the court does	May grant withdrawal after its own record review	Decides the issue on the merits

An appeal with a difficult issue is not a frivolous appeal. If your record contains a preserved objection that was overruled, an unresolved sentencing objection, or a Guidelines calculation you believe is wrong, those are arguable issues even if a lawyer thinks they will lose. See grounds for appeal and standard of review appeal.

Your right to respond — the part that matters most

Anders entitles you to be given “time allowed him to raise any points that he chooses.” That is a right to file a document, in your own words, raising whatever you think the court should look at.

Practical guidance for writing one:

• File it within the time the court gives you. The order accompanying the Anders brief will state a deadline. It is usually short. If you need more time, ask for an extension in writing before the deadline rather than after.
• Be specific about the record. “My trial was unfair” gives the court nothing to check. “At the suppression hearing the agent testified he did not have a warrant, and the court admitted the evidence anyway” tells the court where to look. Page and transcript references help enormously if you have them.
• Name what you asked your lawyer to raise. If you identified issues to counsel and they do not appear in the Anders brief, say so and say what they were.
• Do not worry about legal form. Courts read pro se Anders responses and are accustomed to them being written by non-lawyers. Clarity beats formality.
• Separate record issues from off-record issues. If your complaint is about what your lawyer failed to do, that generally is not a direct-appeal issue at all — see the section below — but the court should still be told, because it bears on whether counsel’s frivolousness assessment was sound.
• Keep a copy. You may need it later for a § 2255 motion.

Applied Insight — Christopher Zoukis, JD, MBA, Managing Director: People in custody often assume a pro se response is a formality that nobody reads. It is not. The court has an independent obligation to examine the record, and a response that points to a specific page of a specific transcript makes that examination concrete rather than general. It costs nothing but time, and the time is already being served.

What the court does next

There are two paths, and both are better than the outcome a client usually fears.

If the court agrees the appeal is wholly frivolous, it may grant counsel’s motion to withdraw and affirm. This is the more common outcome — but it comes only after the court has independently read the record, and after your response has been considered.

If the court finds any arguable issue, the appeal does not end. The court denies the motion to withdraw or appoints new counsel, and the appeal proceeds on the merits with briefing on the issue the court identified.

Penson v. Ohio, 488 U.S. 75 (1988), is the case establishing that the sequence matters. The Court held that the appellate court erred, and among the reasons: “the court should not have acted on the motion before it made its own examination of the record to determine whether counsel’s evaluation of the case was sound.” A court that lets counsel out first and reads the record afterward has left the defendant unrepresented during the part of the process that decides the case.

Where an Anders brief sits in the timeline

Knowing when in the process this arrives helps make sense of what happens next and how long it takes.

An Anders brief is filed in place of the appellant’s opening brief. By the time it appears, the notice of appeal has been filed, the transcript has been produced, the record has been filed with the court of appeals, and counsel has read it. In other words, it comes after the long quiet stretch, not during it — which is why it often arrives as a surprise to a client who had heard nothing for months.

What follows is compressed relative to an ordinary appeal:

Stage	Ordinary appeal	After an Anders brief
Opening brief	Appellant’s brief, due 40 days after the record is filed	The Anders brief and motion to withdraw
Client’s role	None required	Your pro se response, within the time the court sets
Government’s brief	Due 30 days after service	The government often files nothing, or a short response
Reply	21 days	Usually none
Argument	Sometimes granted	Effectively never
Decision	Panel opinion or order	Order resolving both the withdrawal motion and the appeal, after independent record review

Because the Anders path skips full merits briefing and argument, cases on it are usually decided faster than the overall median — which for all appeals terminated on the merits in the 12 months ending September 30, 2025 was 10.2 months from notice of appeal to final order (AO Table B-4A). That median already includes the transcript wait, most of which has happened before an Anders brief is filed. See how long does an appeal take.

Two related points about posture:

You are almost certainly in custody while this happens. An Anders brief does not change that and does not create a basis to revisit it. Release pending appeal is governed by 18 U.S.C. § 3143(b), which begins from a presumption of detention and requires a “substantial question” — and counsel’s filing of an Anders brief is, in practical terms, the opposite of a substantial-question showing. See appeal bond.

An Anders brief is a post-judgment event. It belongs to the ordinary appeal from a final judgment, not to the narrow category of rulings that can be challenged before a case ends — those are governed by an entirely separate jurisdictional analysis. If what you want to challenge happened mid-case and the case has not concluded, see interlocutory appeal.

Anders is a floor, not a uniform national procedure

Two of the cases most often cited alongside Anders are about state procedures, and they are frequently misdescribed.

Smith v. Robbins, 528 U.S. 259 (2000) holds: “The Anders procedure is only one method of satisfying the Constitution’s requirements for indigent criminal appeals; the States are free to adopt different procedures, so long as those procedures adequately safeguard a defendant’s right to appellate counsel.” Robbins is therefore about how much latitude States have — it does not loosen anything in federal practice, where the Anders framework is the operating procedure.

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988) upheld a Wisconsin rule requiring counsel filing a no-merit brief to include “a brief statement of why particular cases, statutes, or facts in the record lead the attorney to believe that the appeal lacks merit,” holding that requirement “constitutional under the Sixth and Fourteenth Amendments.” The Court reasoned that “[e]xplaining the basis for the frivolousness conclusion does not burden the rights to effective representation or to due process on appeal any more than does stating the bald conclusion,” and noted that the rule “does not require an attorney to argue against his or her client; rather it merely requires the attorney to fulfill his or her duty to the courts.”

McCoy is commonly cited for the proposition that appointed counsel must argue against the client. That is not what it says, and it is not a federal requirement — it holds that a State may impose a discussion requirement without violating the Constitution.

The practical takeaway is that the circuit’s own local rules govern the form an Anders brief must take, how long you have to respond, and what the court does with it. Those vary. Check the local rules of the circuit deciding your appeal — see federal appeals court.

What an Anders brief means for your other options

An Anders brief is a signal about the direct appeal. It says little about the rest of your options, and this is where a reader should redirect their energy.

If your issue is…	The direct appeal is…	Where it belongs
A preserved legal error in the record	Still the right forum — say so in your response	grounds for appeal
Something your lawyer failed to do	Not the forum, and its absence is not what makes the appeal frivolous	§ 2255 — ineffective assistance
Something your appellate lawyer failed to raise	Not the forum	ineffective appellate counsel
Evidence discovered after trial	Not the forum	newly discovered evidence
Evidence the government withheld	Not the forum	Brady violation
A change in law since your conviction	Not the forum	retroactive Supreme Court decisions

An appointed lawyer concluding the record contains no arguable issue is, in a meaningful number of cases, correct about the record and silent about everything outside it. The § 2255 clock generally begins when the judgment becomes final, which is affected by whether a certiorari petition is filed — so the receipt of an Anders brief is a good moment to start thinking about collateral review rather than a moment to stop. See direct appeal vs 2255 and post-conviction deadlines.

What to check in the Anders brief itself

The brief filed by your lawyer is a document you are entitled to read closely, and there are specific things worth checking in it.

Does it actually identify anything? Anders requires a brief “referring to anything in the record that might arguably support the appeal.” A filing that says only “counsel has reviewed the record and finds no meritorious issues” does not do what the case requires. A conforming brief walks through the proceedings and identifies the potential issues, then explains why counsel concluded each is frivolous.

Does it cover the whole case? Check whether it addresses sentencing as well as the trial or plea. Sentencing issues are the most commonly overlooked, and an Anders brief that discusses the conviction at length and disposes of the sentence in a sentence is worth questioning.

Does it engage with what you raised? If you gave counsel a list of concerns, see whether they appear. If they do not, your response should say what they were and where in the record they arise.

Does it get the record right? You were present. If the brief’s description of what happened at a hearing does not match your memory, that is worth saying — the court is reviewing the record, and a disputed characterization tells it where to look.

Does it identify the standard of review? A brief concluding that an issue is frivolous without identifying how the court would review it has skipped the analysis that determines whether the issue is arguable at all.

None of this requires legal training. It requires reading the brief against your own memory of the case and noticing gaps — which is precisely what the pro se response exists for.

Should you retain new counsel?

Sometimes, and the question is worth asking rather than assuming either way.

Reasons it may be worth it: you identified specific record issues that do not appear in the Anders brief; the record is long and you have reason to think it was not fully read; there are sentencing issues, which are frequently the most productive and the most easily overlooked; or the appeal is one where a remand for resentencing would materially change your release date.

Reasons it may not be: if independent review confirms the record genuinely contains no arguable issue, retained counsel cannot manufacture one, and the money is better directed at a § 2255 motion where the claims actually live.

The honest middle path is a record assessment — having counsel other than the lawyer who filed the Anders brief read the transcript and give a straight answer about whether there is an arguable issue. That is a bounded piece of work, and its answer determines everything after it. See criminal appeals lawyer.

Why work with Elizabeth Franklin-Best, P.C.

Elizabeth Franklin-Best, P.C. is a boutique federal criminal appellate and post-conviction firm founded in 2019, with a national practice run on an intentionally small caseload. Elizabeth Franklin-Best is admitted to the U.S. Supreme Court and twelve of the thirteen U.S. Courts of Appeals — every regional circuit (1st–11th) plus the D.C. Circuit — has handled more than 330 federal proceedings, over 100 of them appeals, with sixteen published decisions as counsel of record, and is recognized by Best Lawyers in America 2026 for Appellate Practice.

She spent seven years as appellate counsel with the South Carolina Commission on Indigent Defense, which is to say from the inside of exactly the system that produces Anders briefs. A second reading of a record is a discrete, defined engagement, and it is the right first step after receiving one.

Talk to a federal appeals attorney

If an Anders brief has been filed in your case, the response deadline is the immediate issue and it is usually short.

Schedule a consultation · Phone: (843) 620-1100 · Columbia office: 3710 Landmark Dr #113, Columbia, SC 29204

Elizabeth Franklin-Best, P.C. represents clients in federal courts nationwide as a federal appeals lawyer. Consultations are confidential.

Frequently Asked Questions About Anders Briefs

Reviewed for legal accuracy by Elizabeth Franklin-Best, Esq., Principal Attorney·September 2026