OCTOBER TERM, 1999
Syllabus
SMITH, WARDEN
v. ROBBINS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 98-1037. Argued October 5, 1999-Decided January 19,2000
An attorney appointed to represent an indigent defendant on
appeal may conclude that an appeal would be frivolous and request
that the appellate court allow him to withdraw or that the court
dispose of the case without the filing of merits briefs. In
Anders v.
California, 386 U. S. 738, this Court
found that, in order to protect a defendant's constitutional right
to appellate counsel, courts must safeguard against the risk of
granting such requests where an appeal is not actually frivolous;
found California's procedure for evaluating such requests
inadequate; and set forth an acceptable procedure. California
adopted a new procedure in
People v.
Wende, 25 Cal.
3d 436, 600 P. 2d 1071. Unlike under the
Anders procedure,
counsel under
Wende neither explicitly states that his
review has led him to conclude that an appeal would be frivolous
nor requests to withdraw; instead he is silent on the merits of the
case and offers to brief issues at the court's direction. A
California statecourt jury convicted respondent Robbins of
second-degree murder and grand theft. His appointed counsel on
appeal concluded that appeal would be frivolous and filed with the
State Court of Appeal a brief that complied with the
Wende
procedure. Agreeing with counsel's assessment, the Court of Appeal
affirmed. The California Supreme Court denied review. After
exhausting his state postconviction remedies, Robbins sought
federal habeas relief, arguing,
inter alia, that he had been
denied effective assistance of appellate counsel because his
counsel's
Wende brief did not comply with the
Anders
requirement that the brief refer "to anything in the record that
might arguably support the appeal," 386 U. S., at 744. The District
Court agreed, concluding that there were at least two issues that
might arguably have supported Robbins' appeal and finding that his
counsel's failure to include them in his brief deviated from the
Anders procedure and thus amounted to deficient performance
by counsel. Rather than requiring Robbins to prove prejudice from
this deficiency, the court applied a presumption of prejudice. The
Ninth Circuit agreed, concluding that
Anders, together with
Douglas v.
California, 372 U. S. 353-which held
that States must provide appointed counsel to indigent criminal
defendants on appeal-set forth the exclusive procedure by which
appointed counsel's performance could be constitutional, and that
counsel's brief failed to comply with
260
Syllabus
that procedure. The court, however, remanded the case for the
District Court to consider other trial errors raised by
Robbins.
Held:
1. 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. Pp. 269-276.
(a) In finding that the California procedure at issue in
Anderswhich permitted appellate counsel to withdraw upon
filing a conclusory letter stating that the appeal had "no merit"
and permitted the appellate court to affirm the conviction upon
reaching the same conclusion following a review of the record-did
not comport with fair procedure and lacked the equality that the
Fourteenth Amendment requires, this Court placed the case within a
line of precedent beginning with
Griffin v.
Illinois,
351 U. S. 12, and
continuing with
Douglas v.
California, 372 U. S. 353,
that imposed constitutional constraints on those States choosing to
create appellate review. Comparing the California procedure to
other procedures that this Court had found invalid and to statutory
requirements in the federal courts governing appeals by indigents
with appointed counsel, the Court concluded that the finding that
the appeal had "no merit" was inadequate because it did not mean
that the appeal was so lacking in prospects as to be frivolous. The
Court, in a final, separate section, set out what would be an
acceptable procedure for treating frivolous appeals. Pp.
269-272.
(b) The Ninth Circuit erred in finding that
Anders' final
section, though unnecessary to the holding in that case, was
obligatory upon the States. This Court has never so held; its
precedents suggest otherwise; and the Ninth Circuit's view runs
contrary to this Court's established practice. In
McCoy v.
Court of Appeals of Wis., Dist. 1,
486 U. S. 429, this Court
rejected a challenge to Wisconsin's variation on the
Anders
procedure, even though that variation, in at least one respect,
provided less effective advocacy for an indigent. In
Pennsylvania v.
Finley, 481 U. S. 551, the Court
explained that the
Anders procedure is not an independent
constitutional command, but rather a prophylactic framework; it did
not say that this was the only framework that could adequately
vindicate the right to appellate counsel announced in
Douglas. Similarly, in
Penson v.
Ohio,
488 U. S. 75, the
Court described
Anders as simply erecting safeguards.
Finally, any view of the procedure described in
Anders' last
section that converted it from a suggestion into a straitjacket
would contravene this Court's established practice of allowing the
States wide discretion, subject to the minimum require-
261
ments of the Fourteenth Amendment, to experiment with solutions
to difficult policy problems. See,
e. g., Griffin, supra.
The Court, because of its status as a court-particularly a court in
a federal systemavoids imposing a single solution on the States
from the top down and instead evaluates state procedures one at a
time, while leaving "the more challenging task of crafting
appropriate procedures ... to the laboratory of the States ... in
the first instance,"
Cruzan v.
Director, Mo. Dept. of
Health, 497 U. S.
261 (O'CONNOR, J., concurring). Pp. 272-276.
2. California's
Wende procedure does not violate the
Fourteenth Amendment. Pp. 276-284.
(a) The precise rationale for the
Griffin and
Douglas line of cases has never been explicitly stated, but
this Court's case law reveals that the Equal Protection and Due
Process Clauses of the Fourteenth Amendment largely converge to
require that a State's procedure "afford adequate and effective
appellate review to indigent defendants,"
Griffin, supra, at
20 (plurality opinion). A State's procedure provides such review so
long as it reasonably ensures that an indigent's appeal will be
resolved in a way that is related to the merit of that appeal. In
determining whether a particular procedure satisfies this standard,
it is important to focus on the underlying goals that the procedure
should serve-to ensure that those indigents whose appeals are not
frivolous receive the counsel and merits brief required by
Douglas, and also to enable the State to "protect itself so
that frivolous appeals are not subsidized and public moneys not
needlessly spent,"
Griffin, supra, at 24 (Frankfurter, J.,
concurring in judgment). For an indigent's right to counsel on
direct appeal does not include the right to bring a frivolous
appeal and, concomitantly, does not include the right to counsel
for bringing a frivolous appeal.
Anders' obvious goal was to
prevent this limitation on the right to appellate counsel from
swallowing the right itself, and the Court does not retreat from
that goal here. Pp. 276-278.
(b) The
Wende procedure reasonably ensures that an
indigent's appeal will be resolved in a way that is related to the
appeal's merit. A comparison of that procedure to those evaluated
in this Court's chief cases demonstrates that it affords indigents
the adequate and effective appellate review required by the
Fourteenth Amendment. The
Wende procedure is undoubtedly far
better than those procedures the Court has found inadequate. A
significant fact in finding the old California procedure inadequate
in
Anders, and also in finding inadequate the procedures
that the Court reviewed in
Eskridge v.
Washington Bd. of
Prison Terms and Paroles, 357 U. S. 214, and
Lane v.
Brown, 372 U. S.
262
Syllabus
477, two of the precedents on which the
Anders Court
relied, was that those procedures required only a determination
that the defendant was unlikely to prevail on appeal, not that the
appeal was frivolous.
Wende, by contrast, requires both
counsel and the court to find the appeal to be lacking in arguable
issues, i.
e., frivolous. An additional problem with the old
California procedure was that it apparently permitted an appellate
court to allow counsel to withdraw and then decide the appeal
without appointing new counsel. Such a procedure was struck down in
Penson v.
Ohio, supra, because it permitted a basic
violation of the
Douglas right to have counsel until a case
is determined to be frivolous and to receive a merits brief for a
nonfrivolous appeal. Under
Wende, by contrast,
Douglas violations do not occur, both because counsel does
not move to withdraw and because the court orders briefing if it
finds arguable issues. The procedure disapproved in
Anders
also only required counsel to file a one-paragraph "bare
conclusion" that the appeal had no merit, while
Wende
requires that counsel provide a summary of the case's procedural
and factual history, with citations of the record, in order to
ensure that a trained legal eye has searched the record for
arguable issues and to assist the reviewing court in its own
evaluation. Finally, by providing at least two tiers of review, the
Wende procedure avoids the additional flaw, found in the
Eskridge, Lane, and
Douglas procedures, of having
only one such tier. pp. 278-281.
(c) The
Wende procedure is also at least comparable to
those procedures the Court has approved. By neither requiring the
Wende brief to raise legal issues nor requiring counsel to
explicitly describe the case as frivolous, California has made a
good-faith effort to mitigate one of the problems that critics have
found with
Anders, namely, the requirement that counsel
violate his ethical duty as an officer of the court (by presenting
frivolous arguments) as well as his duty to further his client's
interests (by characterizing the client's claims as frivolous).
Wende also attempts to resolve another
Anders
problem-that it apparently adopts gradations of frivolity and uses
two different meanings for the phrase "arguable issue"-by drawing
the line at frivolity and by defining arguable issues as those that
are not frivolous. Finally, the
Wende procedure appears to
be, in some ways, better than the one approved in
McCoy, and
in other ways, worse. On balance, the Court cannot say that the
latter, assuming,
arguendo, that they outweigh the former,
do so sufficiently to make the
Wende procedure
unconstitutional, and the Court's purpose under the Constitution is
not to resolve such arguments. The Court addresses not what is
prudent or appropriate, but what is constitutionally compelled.
United States v.
Cronic, 466 U. S. 648, 665, n.
38. It is enough to say that the
Wende procedure, like
the
263
Anders and
McCoy procedures, and unlike the ones
in,
e. g., Douglas and
Penson, affords adequate and
effective appellate review for criminal indigents. pp. 281-284.
3. This case is remanded for the Ninth Circuit to evaluate
Robbins' ineffective-assistance claim. It may be that his appeal
was not frivolous and that he was thus entitled to a merits brief.
Both the District Court and the Ninth Circuit found that there were
two arguable issues on direct appeal, but it is unclear how they
used the phrase "arguable issues." It is therefore necessary to
clarify how strong those issues are. The proper standard for
evaluating Robbins' claim on remand is that enunciated in
Strickland v.
Washington, 466 U. S. 668: He must
first show that his counsel was objectively unreasonable,
id., at 687-691, in failing to find arguable issues to
appeal, and, if Robbins succeeds in such a showing, he then has the
burden of demonstrating prejudice,
id., at 694. He must
satisfy both prongs of the
Strickland test to prevail, for
his claim does not warrant a presumption of prejudice. He has
received appellate counsel who has complied with a valid state
procedure for determining whether his appeal is frivolous, and the
State has not left him without counsel on appeal. Thus, it is
presumed that the result of the proceedings is reliable, and
Robbins must prove the presumption incorrect. Further, his claim
does not fall within any of the three categories of cases in which
prejudice is presumed, for it does not involve the complete denial
of counsel on appeal, state interference with counsel's assistance,
or an actual conflict of interest on his counsel's part.
Id., at 692, 694. Pp. 284-289.
152 F.3d
1062, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined.
STEVENS, J., filed a dissenting opinion, in which GINSBURG, J.,
joined,
post, p. 289. SOUTER, J., filed a dissenting
opinion, in which STEVENS, GINSBURG, and BREYER, JJ., joined,
post, p. 292.
Carol Frederick Jorstad, Deputy Attorney General of
California, argued the cause for petitioner. With her on the briefs
were
Bill Lockyer, Attorney General,
David P.
Druliner, Chief Assistant Attorney General,
Carol Wendelin
Pollack, Senior Assistant Attorney General, and
Donald E. De
Nicola, Deputy Attorney General.
264
Ronald J. Nessim, by appointment of the
Court, 526 U. s. 1109, argued the cause for respondent. With him on
the brief were
Thomas R. Freeman and
Elizabeth A.
Newman.*
JUSTICE THOMAS delivered the opinion of the Court.
Not infrequently, an attorney appointed to represent an indigent
defendant on appeal concludes that an appeal would be frivolous and
requests that the appellate court allow him to withdraw or that the
court dispose of the case without the filing of merits briefs. In
Anders v.
California, 386 U. S. 738 (1967), we
held that, in order to protect indigent defendants' constitutional
right to appellate counsel, courts must safeguard against the risk
of granting such requests in cases where the appeal is not actually
frivolous. We found inadequate California's procedure-which
permitted appellate counsel to withdraw upon filing a conclusory
letter stating that the appeal had "no merit" and permitted the
appellate court to affirm the conviction upon reaching the same
conclusion following a review of the record. We went on to set
*Briefs of
amici curiae urging reversal were filed for
the State of Arizona et al. by
Janet Napolitano, Attorney
General of Arizona,
Colleen L. French, Assistant Attorney
General, and
Paul J. McMurde; and by the
Attorneys General for their respective States as follows:
Bill
Pryor of Alabama,
M. Jane Brady of Delaware,
Thurbert
E. Baker of Georgia,
Mike Moore of Mississippi,
Frankie Sue Del Papa of Nevada,
D. Michael Fisher of
Pennsylvania,
Paul G.
Summers of Tennessee,
Ken
Salazar of Colorado,
Robert A. Butterworth of Florida,
Richard P. Ieyoub of Louisiana,
Don Stenberg of
Nebraska,
Patricia A. Madrid of New Mexico,
Charles M.
Condon of South Carolina, and
Mark L. Earley of
Virginia; for the California Academy of Appellate Lawyers by
Robert S.
Gerstein, Jay-Allen Eisen, Michael M. Berger,
Peter W Davis, Rex S.
Heinke, Wendy C.
Lascher,
Gerald Z. Marer, and
Jonathan B. Steiner; and for the
Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson.
Briefs of
amici curiae urging affirmance were filed for
the National Association of Criminal Defense Lawyers by
Leon
Friedman; and for Jesus Garcia Delgado by
Michael B.
Dashjian.
Gregory R. Smith filed a brief for retired Justice Armand
Arabian et al. as
amici curiae.
265
forth an acceptable procedure. California has since adopted a
new procedure, which departs in some respects from the one that we
delineated in
Anders. The question is whether that departure
is fatal. We hold that it is not. The procedure we sketched in
Anders is a prophylactic one; the States are free to adopt
different procedures, so long as those procedures adequately
safeguard a defendant's right to appellate counsel.
I A
Under California's new procedure, established in
People
v.
Wende, 25 Cal. 3d 436, 441-442, 600 P. 2d 1071, 1074-1075
(1979), and followed in numerous cases since then, see,
e.
g., People v.
Rowland, 75 Cal. App. 4th 61,
63, 88 Cal. Rptr. 2d 900, 901 (1999), counsel, upon concluding that
an appeal would be frivolous, files a brief with the appellate
court that summarizes the procedural and factual history of the
case, with citations of the record. He also attests that he has
reviewed the record, explained his evaluation of the case to his
client, provided the client with a copy of the brief, and informed
the client of his right to file a
pro se supplemental brief.
He further requests that the court independently examine the record
for arguable issues. Unlike under the
Anders procedure,
counsel following
Wende neither explicitly states that his
review has led him to conclude that an appeal would be frivolous
(although that is considered implicit, see
Wende, 25 Cal.
3d, at 441-442,600 P. 2d, at 1075) nor requests leave to withdraw.
Instead, he is silent on the merits of the case and expresses his
availability to brief any issues on which the court might desire
briefing. See generally
id., at 438,441-442, 600 P. 2d, at
1072, 1074-1075.
The appellate court, upon receiving a
"Wende brief," must
"conduct a review of the entire record," regardless of whether the
defendant has filed a
pro se brief.
Id., at
441442,600 P. 2d, at 1074-1075. The California Supreme Court
266
in
Wende required such a thorough review notwithstanding
a dissenting Justice's argument that it was unnecessary and
exceeded the review that a court performs under
Anders. See
25 Cal. 3d, at 444-445, 600 P. 2d, at 1077 (Clark, J., concurring
in judgment and dissenting in part); see also
id., at 444,
600 P. 2d, at 1076 ("The precise holding in
Anders was that
a 'no merit' letter ... 'was not enough.' ... Just what is 'enough'
is not clear, but the majority of the court in that case did not
require an appellate court to function as cocounsel"). If the
appellate court, after its review of the record pursuant to
Wende, also finds the appeal to be frivolous, it may affirm.
See
id., at 443, 600 P. 2d, at 1076 (majority opinion). If,
however, it finds an arguable (i.
e., nonfrivolous) issue,
it orders briefing on that issue.
Id., at 442, n. 3, 600 P.
2d, at 1075, n. 3.1
B
In 1990, a California state-court jury convicted respondent Lee
Robbins of second-degree murder (for fatally shooting his former
roommate) and of grand theft of an automobile (for stealing a truck
that he used to flee the State after committing the murder).
Robbins was sentenced to 17 years to life. He elected to represent
himself at trial, but on appeal
1 In addition to this double review and double determination of
frivolity, California affords a third layer of review, through the
California Appellate Projects, described in a recent opinion by the
California Court of Appeal for the First District:
"[The appellate projects] are under contract to the court; their
contractual duties include review of the records to assist
court-appointed counsel in identifying issues to brief. If the
court-appointed counsel can find no meritorious issues to raise and
decides to file a
Wende brief, an appellate project staff
attorney reviews the record again to determine whether a
Wende brief is appropriate. Thus, by the time the
Wende brief is filed in the Court of Appeal, the record in
the case has been reviewed
both by the court-appointed
counsel (who is presumably well qualified to handle the case)
and by an experienced attorney on the staff of [the
appellate project]."
People v.
Hackett, 36 Cal. App.
4th 1297, 1311,43 Cal. Rptr. 2d 219, 228 (1995).
267
he received appointed counsel. His appointed counsel, concluding
that an appeal would be frivolous, filed with the California Court
of Appeal a brief that complied with the
Wende procedure.2
Robbins also availed himself of his right under
Wende to
file a
pro se supplemental brief, filing a brief in which he
contended that there was insufficient evidence to support his
conviction and that the prosecutor violated
Brady v.
Maryland, 373
U. S. 83 (1963), by failing to disclose exculpatory
evidence.
The California Court of Appeal, agreeing with counsel's
assessment of the case, affirmed. The court explained that it had
"examined the entire record" and had, as a result, concluded both
that counsel had fully complied with his responsibilities under
Wende and that "no arguable issues exist." App. 39. The
court added that the two issues that Robbins raised in his
supplemental brief had no support in the record.
Ibid. The
California Supreme Court denied Robbins' petition for review.
After exhausting state postconviction remedies, Robbins filed in
the United States District Court for the Central District of
California the instant petition for a writ of habeas corpus
pursuant to 28 U. S. C. §2254.3 Robbins renewed his
Brady
claim, argued that the state trial court had erred by not allowing
him to withdraw his waiver of his right to trial counsel, and added
nine other claims of trial error. In addition, and most importantly
for present purposes, he claimed that he had been denied effective
assistance of appellate counsel because his appellate counsel's
Wende brief failed to comply with
Anders v.
California, 386 U. S., at 744.
Anders
2 Before filing his
Wende brief, counsel consulted with
the California Appellate Project for the Second District Court of
Appeal and received its permission to file such a brief. App.
43.
3 The Antiterrorism and Effective Death Penalty Act of 1996, 110
Stat. 1214, which amended § 2254 and related provisions, does not
apply to respondent's habeas petition, since he filed his petition
before that Act's effective date of April 24, 1996. See
Lindh v.
Murphy, 521 U. S. 320 (1997).
268
set forth a procedure for an appellate counsel to follow in
seeking permission to withdraw from the representation when he
concludes that an appeal would be frivolous; that procedure
includes the requirement that counsel file a brief "referring to
anything in the record that might arguably support the appeal,"
ibid.
The District Court agreed with Robbins' last claim, concluding
that there were at least two issues that, pursuant to
Anders, counsel should have raised in his brief (in a
Wende brief, as noted above, counsel is not required to
raise issues): first, whether the prison law library was adequate
for Robbins' needs in preparing his defense after he elected to
dismiss his appointed counsel and proceed
pro se at trial,
and, second, whether the trial court erred in refusing to allow him
to withdraw his waiver of counsel. The District Court did not
attempt to determine the likelihood that either of these two issues
would have prevailed in an appeal. Rather, it simply concluded
that, in the language of the
Anders procedure, these issues
"might arguably" have "support[ed] the appeal," App. 51, n. 6
(citing
Anders), and thus that Robbins' appellate counsel,
by not including them in his brief, deviated from the procedure set
forth in
Anders. The court concluded that such a deviation
amounted to deficient performance by counsel. In addition, rather
than requiring Robbins to show that he suffered prejudice from this
deficient performance, the District Court applied a presumption of
prejudice. App. 49. Thus, based simply on a finding that appellate
counsel's brief was inadequate under
Anders, the District
Court ordered California to grant respondent a new appeal within 30
days or else release him from custody.
The United States Court of Appeals for the Ninth Circuit agreed
with the District Court on the
Anders issue. In the Ninth
Circuit's view,
Anders, together with
Douglas v.
California, 372 U. S. 353 (1963),
which held that States must provide appointed counsel to indigent
criminal defendants on appeal, "set forth the exclusive procedure
through which ap-
269
pointed counsel's performance can pass constitutional muster."
152 F.3d
1062, 1066 (1998). Rejecting petitioner's argument that
counsel's brief was sufficient because it complied with
Wende, the Ninth Circuit concluded that the brief was
deficient because it did not, as the
Anders procedure
requires, identify any legal issues that arguably could have
supported the appeal. 152 F. 3d, at 1066-1067.4 The court did not
decide whether a counsel's deviation from
Anders, standing
alone, would warrant a new appeal, see 152 F. 3d, at 1066-1067, but
rather concluded that the District Court's award of relief was
proper because counsel had failed to brief the two arguable issues
that the District Court identified. The Ninth Circuit remanded,
however, for the District Court to consider respondent's 11 claims
of trial error.
Id., at 1069. The court reasoned that if
Robbins prevailed on any of these claims, it would be unnecessary
to order the California Court of Appeal to grant a new direct
appeal. We granted certiorari. 526 U. S. 1003 (1999).
II A
In
Anders, we reviewed an earlier California procedure
for handling appeals by convicted indigents. Pursuant to that
procedure, Anders' appointed appellate counsel had filed a letter
stating that he had concluded that there was "no merit to the
appeal," 386 U. S., at 739-740. Anders, in response, sought new
counsel; the State Court of Appeal denied the request, and Anders
filed a
pro se appellate brief. That court then issued an
opinion that reviewed the four claims in his
pro se brief
and affirmed, finding no error (or no prejudicial error).
People v.
Anders, 167 Cal. App. 2d 65, 333 P. 2d
4 In subsequent cases, the Ninth Circuit has reiterated its view
that the
Wende procedure is unconstitutional because it
differs from the
Anders procedure. See
Delgado v.
Lewis, 181 F.3d
1087, 1090, 1093, stay granted pending disposition of pet. for
cert., 527 U. S. 1066 (1999);
Davis v.
Kramer,
167 F.3d
494, 496, 497-498 (1999), cert. pending, No. 98-1427.
270
854 (1959). Anders thereafter sought a writ of habeas corpus
from the State Court of Appeal, which denied relief, explaining
that it had again reviewed the record and had found the appeal to
be "'without merit.'"
Anders, 386 U. S., at 740 (quoting
unreported memorandum opinion).
We held that "California's action does not comport with fair
procedure and lacks that equality that is required by the
Fourteenth Amendment."
Id., at 741. We placed the case
within a line of precedent beginning with
Griffin v.
Illinois, 351
U. S. 12 (1956), and continuing with
Douglas, supra,
that imposed constitutional constraints on States when they choose
to create appellate review.5 In finding the California procedure to
have breached these constraints, we compared it to other procedures
we had found invalid and to statutory requirements in the federal
courts governing appeals by indigents with appointed counsel.
Anders, supra, at 741-743. We relied in particular on
Ellis v.
United States, 356 U. S. 674 (1958)
(per curiam), a case involving federal statutory
requirements, and quoted the following passage from it:
"'If counsel is convinced, after conscientious investigation,
that the appeal is frivolous, of course, he may ask to withdraw on
that account. If the court is satisfied that counsel has diligently
investigated the possible grounds of appeal, and agrees with
counsel's evaluation of the case, then leave to withdraw may be
allowed and leave to appeal may be denied.'" Anders, supra,
at 741-742 (quoting Ellis, supra, at 675).
In
Anders, neither counsel, the state appellate court on
direct appeal, nor the state habeas courts had made any finding of
frivolity.6 We concluded that a finding that the appeal
5 The Constitution does not, however, require States to create
appellate review in the first place. See,
e. g.,
Ross v.
Moffitt, 417 U. S. 600, 606 (1974)
(citing
McKane v.
Durston, 153 U. S. 684, 687
(1894)).
6The same was true in
Ellis itself. See
Ellis v.
United States, 249 F. 2d 478, 480-481 (CADC 1957)
(Washington, J., dissenting) ("Counsel ... concluded that the
rulings of the District Court were not 'so clearly erro-
271
had "no merit" was not adequate, because it did not mean that
the appeal was so lacking in prospects as to be "frivolous": "We
cannot say that there was a finding of frivolity by either of the
California courts or that counsel acted in any greater capacity
than merely as
amicus curiae which was condemned in
Ellis." 386 U. S., at 743.
Having rejected the California procedure, we proceeded, in a
final, separate section, to set out what would be an acceptable
procedure for treating frivolous appeals:
"[I]f counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and
request permission to withdraw. 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. If it so finds it may grant counsel's request to
withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so
requires. On the other hand, if it finds any of the legal points
arguable on their merits (and therefore not frivolous) it must,
prior to decision, afford the indigent the assistance of counsel to
argue the appeal." Id., at 744.
We then concluded by explaining how this procedure would be
better than the California one that we had found deficient. Among
other things, we thought that it would "induce the court to pursue
all the more vigorously its own review because of the ready
references not only to the record but also
neous as to constitute probable error.' ... Where, as here,
there was a fairly arguable question, counsel should have proceeded
to present argument"), vacated and remanded,
356 U. S. 674 (1958)
(per curiam).
272
to the legal authorities as furnished it by counsel."
Id., at 745.
B
The Ninth Circuit ruled that this final section of
Anders, even though unnecessary to our holding in that case,
was obligatory upon the States. We disagree. We have never so held;
we read our precedents to suggest otherwise; and the Ninth
Circuit's view runs contrary to our established practice of
permitting the States, within the broad bounds of the Constitution,
to experiment with solutions to difficult questions of policy.
In
McCoy v.
Court of Appeals of Wis., Dist. 1,
486 U. S. 429
(1988), we rejected a challenge to Wisconsin's variation on the
Anders procedure. Wisconsin had departed from
Anders
by requiring
Anders briefs to discuss
why each issue
raised lacked merit. The defendant argued that this rule was
contrary to
Anders and forced counsel to violate his ethical
obligations to his client. We, however, emphasized that the right
to appellate representation does not include a right to present
frivolous arguments to the court, 486 U. S., at 436, and,
similarly, that an attorney is "under an ethical obligation to
refuse to prosecute a frivolous appeal,"
ibid. (footnote
omitted).
Anders, we explained, merely aims to "assure the
court that the indigent defendant's constitutional rights have not
been violated." 486 U. S., at 442. Because the Wisconsin procedure
adequately provided such assurance, we found no constitutional
violation, notwithstanding its variance from
Anders. See 486
U. S., at 442-444. We did, in
McCoy, describe the procedure
at issue as going "one step further" than
Anders, McCoy,
supra, at 442, thus suggesting that
Anders might set a
mandatory minimum, but we think this description of the Wisconsin
procedure questionable, since it provided less effective advocacy
for an indigent-in at least one respect-than does the
Anders
procedure. The Wisconsin procedure, by providing for one-sided
briefing by counsel against his own client's best claims, probably
made a court
273
more likely to rule against the indigent than if the court had
simply received an
Anders brief.
In
Pennsylvania v.
Finley, 481 U. S. 551 (1987), we
explained that the
Anders procedure is not "an independent
constitutional command," but rather is just "a prophylactic
framework" that we established to vindicate the constitutional
right to appellate counsel announced in
Douglas. 481 U. S.,
at 555. We did not say that our
Anders procedure was the
only prophylactic framework that could adequately vindicate
this right; instead, by making clear that the Constitution itself
does not compel the
Anders procedure, we suggested
otherwise. Similarly, in
Penson v.
Ohio, 488 U. S. 75 (1988), we
described
Anders as simply erecting "safeguards." 488 U. S.,
at 80.
It is true that in
Penson we used some language
suggesting that
Anders is mandatory upon the States, see 488
U. S., at 80-82, but that language was not necessary to the
decision we reached. We had no reason in
Penson to determine
whether the
Anders procedure was mandatory, because the
procedure at issue clearly failed under
Douglas, see
infra, at 280. Further, counsel's action in
Penson
was closely analogous to the action of counsel that we found
invalid in
Anders, see
Penson, supra, at 77-78, so
there was no need to rely on the
Anders procedure, as
opposed to just the
Anders holding, to find counsel's action
improper. See 488 U. S., at 77 ("The question presented by this
case is remarkably similar [to the one presented in
Anders]
and therefore requires a similar answer").
Finally, any view of the procedure we described in the last
section of
Anders that converted it from a suggestion into a
straitjacket would contravene our established practice, rooted in
federalism, of allowing the States wide discretion, subject to the
minimum requirements of the Fourteenth Amendment, to experiment
with solutions to difficult problems of policy. In
Griffin
v.
Illinois, 351 U. S. 12 (1956), which
we invoked as the foundational case for our holding
274
in
Anders, see
Anders, 386 U. S., at 741, we
expressly disclaimed any pretensions to rulemaking authority for
the States in the area of indigent criminal appeals. We imposed no
broad rule or procedure but merely held unconstitutional Illinois'
requirement that indigents pay a fee to receive a trial transcript
that was essential for bringing an appeal. Justice Frankfurter, who
provided the necessary fifth vote for the holding in
Griffin, emphasized that it was not for this Court "to tell
Illinois what means are open to the indigent and must be chosen.
Illinois may prescribe any means that are within the wide area of
its constitutional discretion" and "may protect itself so that
frivolous appeals are not subsidized and public moneys not
needlessly spent." 351 U. S., at 24 (opinion concurring in
judgment). He added that while a State could not "bolt the door to
equal justice," it also was not obliged to "support a wasteful
abuse of the appellate process."
Ibid. The
Griffin
plurality shared this view, explaining that the Court was not
holding "that Illinois must purchase a stenographer's transcript in
every case where a defendant cannot buy it. The Supreme Court [of
Illinois] may find other means of affording adequate and effective
appellate review to indigent defendants."
Id., at 20.
In a related context, we stated this basic principle of
federalism in the very Term in which we decided
Anders. We
emphatically reaffirmed that the Constitution "has never been
thought [to] establish this Court as a rule-making organ for the
promulgation of state rules of criminal procedure."
Spencer
v.
Texas, 385
U. S. 554, 564 (1967) (citing,
inter alia, Griffin,
supra). Accord,
Medina v.
California, 505 U. S.
437,443-444,447-448 (1992). Justice Stewart, concurring in
Spencer, explained further:
"If the Constitution gave me a roving commission to impose upon
the criminal courts of Texas my own notions of enlightened policy,
I would not join the Court's opinion .... [But] [t]he question is
whether those procedures fall below the minimum level the
Fourteenth
275
Amendment will tolerate. Upon that question, I am constrained to
join the opinion and judgment of the Court." 385 U. S., at 569.
We have continued to reiterate this principle in recent years.
See
Finley, 481 U. S., at 559 (refusing to accept the
premise that "when a State chooses to offer help to those seeking
relief from convictions, the Federal Constitution dictates the
exact form such assistance must assume");
ibid. (explaining
that States have "substantial discretion to develop and implement
programs to aid prisoners seeking to secure postconviction
review");
Murray v.
Giarratano, 492 U. S. 1, 13 (1989)
(O'CONNOR, J., concurring) ("[N]or does it seem to me that the
Constitution requires the States to follow any particular federal
model in [postconviction] proceedings .... States [have]
considerable discretion");
id., at 14 (KENNEDY, J.,
concurring in judgment) ("[J]udicial imposition of a categorical
remedy ... might pretermit other responsible solutions being
considered in Congress and state legislatures"). Although
Finley and
Murray involved postconviction proceedings
(in which there is no constitutional right to counsel) rather than
direct appeal, we think, as the language of
Griffin
suggests, that the principle is the same in both contexts. For in
Griffin, as here, there was an underlying constitutional
right at issue.
In short, it is more in keeping with our status as a court, and
particularly with our status as a court in a federal system, to
avoid imposing a single solution on the States from the top down.
We should, and do, evaluate state procedures one at a time, as they
come before us, see
Murray, supra, at 14, while leaving "the
more challenging task of crafting appropriate procedures ... to the
laboratory of the States in the first instance,"
Cruzan v.
Director, Mo. Dept. of Health, 497 U. S. 261, 292 (1990)
(O'CONNOR, J., concurring) (citation and internal quotation marks
omitted). We will not cavalierly "imped[e] the States' ability to
serve as laboratories for testing solutions to novel legal
problems."
Arizona v.
276
Evans, 514 U.
S. 1,24 (1995) (GINSBURG, J., dissenting). Accordingly, we hold
that the
Anders procedure is merely one method of satisfying
the requirements of the Constitution for indigent criminal appeals.
States may-and, we are confident, will-craft procedures that, in
terms of policy, are superior to, or at least as good as, that in
Anders. The Constitution erects no barrier to their doing
SO.7
III
Having determined that California's
Wende procedure is
not unconstitutional merely because it diverges from the
Anders procedure, we turn to consider the
Wende
procedure on its own merits. We think it clear that California's
system does not violate the Fourteenth Amendment, for it provides
"a criminal appellant pursuing a first appeal as of right [the]
minimum safeguards necessary to make that appeal 'adequate and
effective,'"
Evitts v.
Lucey, 469 U. S. 387, 392 (1985)
(quoting
Griffin, 351 U. S., at 20 (plurality opinion)).
A
As we have admitted on numerous occasions, "'[t]he precise
rationale for the
Griffin and
Douglas lines of cases
has never been explicitly stated, some support being derived from
the Equal Protection Clause of the Fourteenth Amendment and some
from the Due Process Clause of that Amendment.'''
Evitts,
supra, at 403 (quoting
Ross v.
Moffitt, 417 U. S. 600, 608-609
(1974) (footnote omitted)). But our case law reveals that, as a
practical matter, the two Clauses largely converge to require that
a State's procedure "affor[d] adequate and effective appellate
review to indigent defendants,"
Griffin, 351 U. S., at 20
(plurality opinion). A State's procedure provides such review so
long as it reasonably en-
7 States have, in fact, already been doing this to some degree.
See Warner,
Anders in the Fifty States: Some Appellants'
Equal Protection is More Equal Than Others', 23 Fla. St. U. L. Rev.
625, 642-662 (1996);
Arizona v.
Clark, 196 Ariz. 530,
536-539, 2 P. 3d 89, 95-98 (App. 1999).
277
sures that an indigent's appeal will be resolved in a way that
is related to the merit of that appeal.8 See
id., at 17-18
(plurality opinion) (state law regulating indigents' appeals bore
"no rational relationship to a defendant's guilt or innocence");
id., at 22 (Frankfurter, J., concurring in judgment) (law
imposed "differentiations ... that have no relation to a rational
policy of criminal appeal");
Douglas, 372 U. S., at 357
(decision of first appeal "without benefit of counsel, ... no
matter how meritorious [an indigent's] case may turn out to be,"
discriminates between rich and poor rather than between "possibly
good and obviously bad cases" (internal quotation marks omitted));
Rinaldi v.
Yeager, 384 U. S. 305, 310 (1966)
(state appellate system must be "free of unreasoned distinctions");
Evitts, supra, at 404 (law in
Griffin "decided the
appeal in a way that was arbitrary with respect to the issues
involved"). Compare
Finley, supra, at 556 ("The equal
protection guarantee ... only ... assure[s] the indigent defendant
an adequate opportunity to present his claims fairly in the context
of the State's appellate process" (quoting
Ross, supra, at
616)), with
Evitts, supra, at 405 ("[DJue process ...
[requires] States ... to offer each defendant a fair opportunity to
obtain an adjudication on the merits of his appeal" (discussing
Griffin and
Douglas)).9
In determining whether a particular state procedure satisfies
this standard, it is important to focus on the underlying goals
that the procedure should serve-to ensure that those indigents
whose appeals are not frivolous receive the counsel and merits
brief required by
Douglas, and also to enable the
8 Of course, no procedure can eliminate all risk of error.
E.
g., Walters
9 Although we have said that an indigent must receive
"substantial equality" compared to the legal assistance that a
defendant with paid counsel would receive,
McCoy v.
Court
of Appeals of Wis., Dist. 1,
486 U. S. 429, 438
(1988), we have also emphasized that "[a]bsolute equality is not
required; lines can be and are drawn and we often sustain them,"
Douglas v.
California, 372 U. S. 353, 357
(1963).
278
State to "protect itself so that frivolous appeals are not
subsidized and public moneys not needlessly spent,"
Griffin,
supra, at 24 (Frankfurter, J., concurring in judgment). For
although, under
Douglas, indigents generally have a right to
counsel on a first appeal as of right, it is equally true that this
right does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing a
frivolous appeal.lO See
McCoy, 486 U. S., at
436-438;
Douglas, supra, at 357; see also
United States v.
Cronic, 466 U.
S. 648, 656, n. 19 (1984) ("Of course, the Sixth Amendment does
not require that [trial] counsel do what is impossible or
unethical"); cf.
Nix v.
Whiteside, 475 U. S. 157, 175 (1986)
(no violation of Sixth Amendment right to the effective assistance
of counsel when trial counsel refuses to violate ethical duty not
to assist his client in presenting perjured testimony). To put the
point differently, an indigent defendant who has his appeal
dismissed because it is frivolous has not been deprived of "a fair
opportunity" to bring his appeal,
Evitts, supra, at 405; see
Finley, 481 U. S., at 556, for fairness does not require
either counselor a full appeal once it is properly determined that
an appeal is frivolous. The obvious goal of
Anders was to
prevent this limitation on the right to appellate counsel from
swallowing the right itself, see
Penson, 488 U. S., at
83-84;
McCoy, supra, at 444, and we do not retreat from that
goal today.
B
We think the
Wende procedure reasonably ensures that an
indigent's appeal will be resolved in a way that is related to
10 This distinction gives meaning to our previous emphasis on an
indigent appellant's right to "advocacy." Although an indigent
whose appeal is frivolous has no right to have an advocate make his
case to the appellate court, such an indigent does, in all cases,
have the right to have an attorney, zealous for the indigent's
interests, evaluate his case and attempt to discern nonfrivolous
arguments. See
Ellis, 356 U. S., at 675;
Anders v.
California, 386 U. S. 738, 741-743
(1967).
279
the merit of that appeal. Whatever its strengths or weaknesses
as a matter of policy, we cannot say that it fails to afford
indigents the adequate and effective appellate review that the
Fourteenth Amendment requires. A comparison of the
Wende
procedure to the procedures evaluated in our chief cases in this
area makes this evident.
The
Wende procedure is undoubtedly far better than those
procedures we have found inadequate.
Anders itself, in
disapproving the former California procedure, chiefly relied on
three precedents:
Ellis v.
United States, 356 U. S. 674 (1958)
(per curiam), Eskridge v.
Washington Bd. of Prison Terms
and Paroles, 357
U. S. 214 (1958)
(per curiam), and
Lane v.
Brown, 372 U.
S. 477 (1963). See
Anders, 386 U. S., at 741743.
Although we did not, in
Anders, explain in detail why the
California procedure was inadequate under each of these precedents,
our particularly heavy reliance on
Ellis makes clear that a
significant factor was that the old California procedure did not
require either counselor the court to determine that the appeal was
frivolous; instead, the procedure required only that they determine
that the defendant was unlikely to prevail on appeal. Compare
Anders, supra, at 741-742 (" 'If counsel is convinced, after
conscientious investigation, that the appeal is frivolous, of
course, he may ask to withdraw .... If the court ... agrees with
counsel's evaluation of the case, then leave to withdraw may be
allowed and leave to appeal may be denied'" (quoting
Ellis,
supra, at 675)), with
Anders, supra, at 743 ("We cannot
say that there was a finding of frivolity"). See also
McCoy,
supra, at 437 (quoting same passage from
Ellis that we
quoted in
Anders). This problem also appears to have been
one of the flaws in the procedures at issue in
Eskridge and
Lane. The former involved a finding only that there had been
"'no grave or prejudicial errors'" at trial,
Anders, supra,
at 742 (quoting
Eskridge, supra, at 215), and the latter, a
finding only that the appeal" 'would be unsuccessful,'"
Anders,
supra, at 743 (quoting
Lane, supra, at 482).
Wende,
280
by contrast, requires both counsel and the court to find the
appeal to be lacking in arguable issues, which is to say,
frivolous. See 25 Cal. 3d, at 439,441-442,600 P. 2d, at 1073,1075;
see
id., at 441, 600 P. 2d, at 1074 (reading
Anders
as finding old California procedure deficient largely "because the
court itself did not make an express finding that the appeal was
frivolous").
An additional problem with the old California procedure was that
it apparently permitted an appellate court to allow counsel to
withdraw and thereafter to decide the appeal without appointing new
counsel. See
Anders, supra, at 740, n. 2. We resolved any
doubt on this point in
Penson, where we struck down a
procedure that allowed counsel to withdraw before the court had
determined whether counsel's evaluation of the case was accurate,
488 U. S., at 82-83, and, in addition, allowed a court to decide
the appeal without counsel even if the court found arguable issues,
id., at 83 (stating that this latter flaw was the "[m]ost
significan[t]" one). Thus, the
Penson procedure permitted a
basic violation of the
Douglas right to have counsel until a
case is determined to be frivolous and to receive a merits brief
for a nonfrivolous appeal. See 488 U. S., at 88 ("[I]t is important
to emphasize that the denial of counsel in this case left
petitioner completely without representation during the appellate
court's actual decisional process");
ibid. (defendant was
"entirely without the assistance of counsel on appeal"). Cf.
McCoy, supra, at 430-431, n. 1 (approving procedure under
which appellate court first finds appeal to be frivolous and
affirms, then relieves counsel). Under
Wende, by contrast,
Douglas violations do not occur, both because counsel does
not move to withdraw and because the court orders briefing if it
finds arguable issues. See
Wende, supra, at 442, n. 3, 600
P. 2d, at 1075, n. 3; see also,
e. g., Rowland, 75 Cal. App.
3d, at 61-62, 88 Cal. Rptr. 2d, at 900-90l.
In
Anders, we also disapproved the old California
procedure because we thought that a one-paragraph letter from
281
counsel stating only his "bare conclusion" that the appeal had
no merit was insufficient. 386 U. S., at 742. It is unclear from
our opinion in
Anders how much our objection on this point
was severable from our objection to the lack of a finding of
frivolity, because we immediately followed our description of
counsel's "no merit" letter with a discussion of
Ellis,
Eskridge, and
Lane, and the lack of such a finding. See
386 U. S., at 742-743. In any event, the
Wende brief
provides more than a one-paragraph "bare conclusion." Counsel's
summary of the case's procedural and factual history, with
citations of the record, both ensures that a trained legal eye has
searched the record for arguable issues and assists the reviewing
court in its own evaluation of the case.
Finally, an additional flaw with the procedures in
Eskridge and
Lane was that there was only one tier of
review-by the trial judge in
Eskridge (who understandably
had little incentive to find any error warranting an appeal) and by
the public defender in
Lane. See
Anders, supra, at
742-743. The procedure in
Douglas itself was, in part,
flawed for the same reason. See 372 U. S., at 354-355. The
Wende procedure, of course, does not suffer from this flaw,
for it provides at least two tiers of review.
Not only does the
Wende procedure far exceed those
procedures that we have found invalid, but it is also at least
comparable to those procedures that we have approved. Turning first
to the procedure we set out in the final section of
Anders,
we note that it has, from the beginning, faced "'consistent and
severe criticism.'"
In re Sade c., 13 Cal. 4th 952, 979, n.
7, 920 P. 2d 716, 731, n. 7 (1996) (quoting Note, 67 Texas L. Rev.
181, 212 (1988)). One of the most consistent criticisms, one with
which we wrestled in
McCoy, is that
Anders is in some
tension both with counsel's ethical duty as an officer of the court
(which requires him not to present frivolous arguments) and also
with his duty to further his client's interests (which might not
permit counsel to characterize his
282
client's claims as frivolous).l1 California, through the
Wende procedure, has made a good-faith effort to mitigate
this problem by not requiring the
Wende brief to raise legal
issues and by not requiring counsel to explicitly describe the case
as frivolous. See
Wende, 25 Cal. 3d, at 441-442, 600 P. 2d,
at 1074-1075.
Another criticism of the
Anders procedure has been that
it is incoherent and thus impossible to follow. Those making this
criticism point to our language in
Anders suggesting that an
appeal could be both "wholly frivolous" and at the same time
contain arguable issues, even though we also said that an issue
that was arguable was "therefore not frivolous."
Anders,
supra, at 744.12 In other words, the
Anders procedure
appears to adopt gradations of frivolity and to use two different
meanings for the phrase "arguable issue." The
Wende
procedure attempts to resolve this problem as well, by drawing the
line at frivolity and by defining arguable issues as those that are
not frivolous.13
11 As one former public defender has explained, "an attorney
confronted with the
Anders situation has to do something
that the Code of Professional Responsibility describes as
unethical; the only choice is as to which canon he or she prefers
to violate." Pengilly, Never Cry
Anders: The Ethical Dilemma
of Counsel Appointed to Pursue a Frivolous Criminal Appeal, 9 Crim.
Justice J. 45, 64 (1986). See also,
e. g., Commonwealth v.
Moffett, 383 Mass. 201, 206, 418 N. E. 2d 585, 590 (1981)
(Anders requires a "Janus-faced approach" by counsel);
Hermann, Frivolous Criminal Appeals, 47 N. Y. U. L. Rev. 701, 711
(1972).
12Justice Stewart, in his dissent in
Anders, was the
first to make this criticism of the procedure set out by the
Anders majority: "[I]f the record did present any such
'arguable' issues, the appeal would not be frivolous." 386 U. S.,
at 746; see
id., at 746, n. See also,
e. g.,
C. Wolfram, Modern Legal Ethics 817 (1986) ("The
Anders
directives are confusing, if not contradictory").
13 See
supra, at 279-280. A further criticism of
Anders has been that it is unjust. More particularly,
critics have claimed that, in setting out the
Anders
procedure, we were oblivious to the problem of scarce resources
(with regard to both counsel and courts) and, as a result, crafted
a rule that diverts attention from meritorious appeals of indigents
and ensures poor representation for all indigents. See,
e.
g., Pritchard, Auc-
283
Finally, the
Wende procedure appears to be, in some ways,
better than the one we approved in
McCoy and, in other ways,
worse. On balance, we cannot say that the latter, assuming,
arguendo, that they outweigh the former, do so sufficiently
to make the
Wende procedure unconstitutional. The Wisconsin
procedure we evaluated in
McCoy, which required counsel
filing an
Anders brief to explain why the issues he raised
in his brief lacked merit, arguably exacerbated the ethical problem
already present in the
Anders procedure. The
Wende
procedure, as we have explained, attempts to mitigate that problem.
Further, it appears that in the
McCoy scheme counsel
discussed-and the appellate court reviewed-only the parts of the
record cited by counsel in support of the "arguable" issues he
raised. See 486 U. S., at 440, 442. The
Wende procedure, by
contrast, requires a more thorough treatment of the record by both
counsel and court. See 25 Cal. 3d, at 440-441, 600 P. 2d, at
1074-1075;
id., at 445, 600 P. 2d, at 1077 (Clark, J.,
concurring in judg-
tioning Justice: Legal and Market Mechanisms for Allocating
Criminal Appellate Counsel, 34 Am. Crim. L. Rev. 1161, 1167-1168
(1997)
(Anders has created a "tragedy of the commons" that,
"far from guaranteeing adequate appellate representation for all
criminal defendants, instead ensures that indigent criminal
defendants will receive mediocre appellate representation, whether
their claims are good or bad" (footnote omitted)); Pritchard,
supra, at 1169 (noting
Anders' similar effect on
appellate courts); Pritchard,
supra, at 1162 ("[J]udicial
fiat cannot cure scarcity; it merely disguises the symptoms of the
disease"); Doherty, Wolf! Wolf!-The Ramifications of Frivolous
Appeals, 59 J. Crim. L., C. & P. S. 1, 2 (1968) ("[T]he people
who will suffer the most are the indigent prisoners who have been
unjustly convicted; they will languish in prison
while lawyers devote time and energy to hopeless causes on a first
come-first served basis" (footnote omitted)). We cannot say whether
the
Wende procedure is better or worse than the
Anders procedure in this regard (although we are aware of
policy-based arguments that it is worse as to appellate courts, see
People v.
Williams, 59 Cal. App. 4th 1202, 1205-1206,
69 Cal. Rptr. 2d 690, 692 (1997); Brief for Retired Justice Armand
Arabian et al. as
Amici Curiae), but it is clear that, to
the extent this criticism has merit, our holding today that the
Anders procedure is not exclusive will enable States to
continue to experiment with solutions to this problem.
284
ment and dissenting in part). On the other hand, the
McCoy procedure, unlike the
Wende procedure, does
assist the reviewing court by directing it to particular legal
issues; as to those issues, this is presumably a good thing. But it
is also possible that bad judgment by the attorney in selecting the
issues to raise might divert the court's attention from more
meritorious, unmentioned, issues. This criticism is, of course,
equally applicable to the
Anders procedure. Moreover, as to
the issues that counsel does raise in a
McCoy brief, the
one-sided briefing on why those issues are frivolous may predispose
the court to reach the same conclusion. The
Wende procedure
reduces these risks, by omitting from the brief signals that may
subtly undermine the independence and thoroughness of the second
review of an indigent's case.
Our purpose is not to resolve any of these arguments.
The Constitution does not resolve them, nor does it require us
to do so. "We address not what is prudent or appropriate, but only
what is constitutionally compelled."
Cronic, 466 U. S., at
665, n. 38. It is enough to say that the
Wende procedure,
like the
Anders and
McCoy procedures, and unlike the
ones in
Ellis, Eskridge, Lane, Douglas, and
Penson,
affords adequate and effective appellate review for criminal
indigents. Thus, there was no constitutional violation in this case
simply because the
Wende procedure was used.
IV
Since Robbins' counsel complied with a valid procedure for
determining when an indigent's direct appeal is frivolous, we
reverse the Ninth Circuit's judgment that the
Wende
procedure fails adequately to serve the constitutional principles
we identified in
Anders. But our reversal does not
necessarily mean that Robbins' claim that his appellate counsel
rendered constitutionally ineffective assistance fails. For it may
be, as Robbins argues, that his appeal was not frivolous and that
he was thus entitled to a merits brief rather than to a
Wende brief. Indeed, both the District Court and the
285
Ninth Circuit found that there were two arguable issues on
direct appeal. The meaning of "arguable issue" as used in the
opinions below, however, is far from clear. The courts below most
likely used the phrase in the unusual way that we used it in
Anders-an issue arguably supporting the appeal even though
the appeal was wholly frivolous. See 152 F. 3d, at 1067 (discussing
arguable issues in context of requirements of
Anders); App.
48 (District Court opinion) (same). Such an issue does not warrant
a merits brief. But the courts below may have used the term to
signify issues that were "arguable" in the more normal sense of
being nonfrivolous and thus warranting a merits brief. See
id., at 49, and n. 3 (District Court, considering arguable
issues to determine "whether
Anders was violated," but also
defining arguable issue as one that counsel could argue "in good
faith with some potential for prevailing"). Further, the courts
below, in determining whether there were arguable issues, did not
address petitioner's argument that, at least with regard to the
adequacy of the prison law library, Robbins waived the issue for
appeal by failing to object at trial. Thus, it will be necessary on
remand to clarify just how strong these two issues are.
On remand, the proper standard for evaluating Robbins' claim
that appellate counsel was ineffective in neglecting to file a
merits brief is that enunciated in
Strickland v.
Washington, 466 U. S. 668 (1984). See
Smith v.
Murray, 477 U. S. 527, 535-536
(1986) (applying
Strickland to claim of attorney error on
appeal). Respondent must first show that his counsel was
objectively unreasonable, see
Strickland, 466 U. S., at
687-691, in failing to find arguable issues to appeal-that is, that
counsel unreasonably failed to discover nonfrivolous issues and to
file a merits brief raising them. If Robbins succeeds in such a
showing, he then has the burden of demonstrating prejudice. That
is, he must show a reasonable probability that, but for his
counsel's unreasonable failure to file a merits brief, he would
have prevailed on his appeal.
286
See
id., at 694 (defendant must show "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different").14
The applicability of
Strickland's actual-prejudice prong
to Robbins' claim of ineffective assistance follows from
Penson, where we distinguished denial of counsel altogether
on appeal, which warrants a presumption of prejudice, from mere
ineffective assistance of counsel on appeal, which does not. See
488 U. S., at 88-89. The defendant in
Penson faced a denial
of counsel because, as we have discussed,
supra, at 280, not
only was an invalid state procedure followed, but that procedure
was clearly invalid insofar as it denied the defendant his right to
appellate counsel under
Douglas, see 488 U. S., at 83, 88.
Our holding in
Penson was consistent with
Strickland
itself, where we said that we would presume prejudice when a
defendant had suffered an "[a]ctual or constructive denial of the
assistance of counsel altogether." 466 U. S., at 692; see also
Cronic, supra, at 659, and n. 25. In other words, while we
normally apply a "strong presumption of reliability" to judicial
proceedings and require a defendant to overcome that presumption,
Strickland, supra, at 696, when, as in
Penson, there
has been a complete denial of counsel, we understandably presume
the opposite, see
Strickland, supra, at 692.
But where, as here, the defendant has received appellate counsel
who has complied with a valid state procedure for determining
whether the defendant's appeal is frivolous, and the State has not
at any time left the defendant without counsel on appeal, there is
no reason to presume that the defendant has been prejudiced. In
Penson, we worried that requiring the defendant to establish
prejudice would leave him "without any of the protections afforded
by
Anders."
14 The performance component need not be addressed first. "If it
is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so,
that course should be followed."
Strickland v.
Washington, 466 U. S., at 697.
287
488 U. S., at 86. Here, by contrast, counsel followed a
procedure that is constitutional under
Anders and our other
precedents in this area, and Robbins therefore received all the
procedural protection that the Constitution requires. We thus
presume that the result of the proceedings on appeal is reliable,
and we require Robbins to prove the presumption incorrect in his
particular case. See
Strickland, 466 U. S., at 694.
Further, the ineffective-assistance claim that Robbins presses
does not fall within any of the three categories of cases,
described in
Strickland, in which we presume prejudice
rather than require a defendant to demonstrate it. First, as noted,
we presume prejudice in a case of denial of counsel. Second,
"various kinds of state interference with counsel's assistance" can
warrant a presumption of prejudice.
Id., at 692; see
Cronic, 466 U. S., at 659, and n. 25. Third, "prejudice is
presumed when counsel is burdened by an actual conflict of
interest,"
Strickland, 466 U. S., at 692, although in such a
case we do require the defendant to show that the conflict
adversely affected his counsel's performance,
ibid. None of
these three categories applies to a case such as Robbins'. Nor does
the policy reason that we offered in
Strickland for the
first two categories apply here, for it is not the case that, if an
attorney unreasonably chooses to folIowa procedure such as
Anders or
Wende instead of filing a merits brief,
prejudice "is so likely that case-by-case inquiry into prejudice is
not worth the cost." 466 U. S., at 692; see
Cronic, supra,
at 658.15 On the contrary, in most cases in which a defendant's
appeal has been found, pursuant to a valid state procedure, to be
frivolous, it will in fact be frivolous.
It is no harder for a court to apply
Strickland in this
area than it is when a defendant claims that he received
ineffec-
15 Moreover, such an error by counsel is neither "easy to
identify" (since it is necessary to evaluate a defendant's case in
order to find the error) nor attributable to the prosecution. See
Strickland, supra, at 692.
288
tive assistance of appellate counsel because his counsel,
although filing a merits brief, failed to raise a particular claim.
I t will likely be easier to do so. In
Jones v.
Barnes,
463 U. S. 745 (1983), we held that appellate counsel who files
a merits brief need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to maximize
the likelihood of success on appeal. Notwithstanding
Barnes,
it is still possible to bring a
Strickland claim based on
counsel's failure to raise a particular claim, but it is difficult
to demonstrate that counsel was incompetent. See,
e.
g., Gray v.
Greer, 800 F.2d
644, 646
(CA7 1986) ("Generally, only when ignored
issues are clearly stronger than those presented, will the
presumption of effective assistance of counsel be overcome"). With
a claim that counsel erroneously failed to file a merits brief, it
will be easier for a defendant-appellant to satisfy the first part
of the
Strickland test, for it is only necessary for him to
show that a reasonably competent attorney would have found one
nonfrivolous issue warranting a merits brief, rather than showing
that a particular nonfrivolous issue was clearly stronger than
issues that counsel did present. In both cases, however, the
prejudice analysis will be the same.16
16 Federal judges are, of course, fully capable of assessing
prejudice in this area, including for the very sorts of claims that
Robbins has raised. See,
e. g., Duhamel v.
Collins,
955 F.2d
962, 967
(CA5 1992) (defendant not prejudiced by
appellate counsel's failure to challenge sufficiency of the
evidence);
Banks v.
Reynolds, 54
F.3d 1508, 1515-1516 (CAlO 1995) (finding both parts of
Strickland test satisfied where appellate counsel failed to
raise claim of violation of
Brady v.
Maryland,
373 U. S. 83
(1963));
Cross v.
United States, 893 F.2d
1287, 1290-1291, 1292 (CAll) (rejecting challenge to appellate
counsel's failure to raise claim of violation of
Faretta v.
California, 422 U. S. 806 (1975), by
determining that there was no prejudice), cert. denied, 498 U. S.
849 (1990). Since Robbins was convicted in state court, we have no
occasion to consider whether a
per se prejudice approach, in
lieu of
Strickland's actual-prejudice requirement, might be
appropriate in the context of challenges to federal convictions
where counsel was deficient in failing to file a merits brief on
direct appeal. See
Goeke v.
Branch, 514 U. S. 115, 119 (1995)
(per curiam) (distinguishing
289
In sum, Robbins must satisfy both prongs of the
Strickland test in order to prevail on his claim of
ineffective assistance of appellate counsel. The judgment of the
Court of Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
While I join JUSTICE SOUTER'S cogent dissent without
qualification, I write separately to emphasize two points that are
obscured by the Court's somewhat meandering explanation of its
sharp departure from settled law.
First, despite its failure to say so directly, the Court has
effectively overruled both
Anders v.
California,
386 U. S. 738
(1967), and
Penson v.
Ohio, 488 U. S. 75 (1988).
Second, its unexplained rejection of the reasoning underlying our
decision in
McCoy v.
Court of Appeals of Wis., Dist.
1,
486 U. S. 429
(1988), see
ante, at 272-273, illustrates the extent of
today's majority's disregard for accepted precedent.
To make my first point it is only necessary to quote the Court's
new standard for determining whether a State's appellate procedure
affords adequate review for indigent defendants:
"A State's procedure provides such review so long as it
reasonably ensures that an indigent's appeal will be resolved in a
way that is related to the merit of that appeal." Ante, at
276-277.
The California procedure reviewed in
Anders and the Ohio
procedure reviewed in
Penson-both found inadequate by this
Court-would easily have satisfied that standard. Yet the Court
today accepts California's current procedure be-
rules established pursuant to this Court's supervisory power to
administer federal court system from constitutional rules
applicable to States);
United States v.
Cronic,
466 U. S. 648,
665, n. 38 (1984) (same).
290
cause it "requires both counsel and the court to find the appeal
to be lacking in arguable issues."
Ante, at 280. But in
defense of its position in
Anders, California relied heavily
on those very same requirements, i.
e., "the additional
feature of the [State's] system where the court also reads the full
record." Brief for Respondent in
Anders v.
California, o. T. 1966, No. 98, pp. 30-31; see also
id., at 12-13, 19, 23, 28-29. Our
Anders decision
held, however, that this "additional feature" was insufficient to
safeguard the indigent appellant's rights.
To make my second point I shall draw on my own experience as a
practicing lawyer and as a judge. On a good many occasions I have
found that the task of writing out the reasons that support an
initial opinion on a question of lawwhether for the purpose of
giving advice to my client or for the purpose of explaining my vote
as an appellate judgeleads to a conclusion that was not previously
apparent. Colleagues who shared that view of the importance of
giving reasons, as opposed to merely announcing conclusions, joined
the opinions that I authored in
McCoy, Penson, and
Nickols v.
Gagnon, 454 F.2d
467 (CA71971).1 In its casual rejection of the reasoning
in
McCoy, the Court simply ignores this portion of the
opinion:
"Wisconsin's Rule merely requires that the attorney go one step
further. Instead of relying on an unexplained assumption that the
attorney has discovered law or facts that completely refute the
arguments identified in the
1 "The danger that a busy or inexperienced lawyer might opt in
favor of a one sentence letter instead of an effective brief in an
individual marginal case is real, notwithstanding the dedication
that typifies the profession. If, however, counsel's ultimate
evaluation of the case must be supported by a written opinion
'referring to anything in the record that might arguably support
the appeal,' the temptation to discharge an obligation in summary
fashion is avoided, and the reviewing court is provided with
meaningful assistance."
Nickols, 454 F. 2d, at 470 (citation
and footnotes omitted) (quoting
Anders v.
California,
386 U. S. 738,
744 (1967)).
291
brief, the Wisconsin court requires additional evidence of
counsel's diligence. This requirement furthers the same interests
that are served by the minimum requirements of Anders.
Because counsel may discover previously unrecognized aspects of the
law in the process of preparing a written explanation for his or
her conclusion, the discussion requirement provides an additional
safeguard against mistaken conclusions by counsel that the
strongest arguments he or she can find are frivolous. Just like the
references to favorable aspects of the record required by
Anders, the discussion requirement may forestall some
motions to withdraw and will assist the court in passing on the
soundness of the lawyer's conclusion that the appeal is frivolous."
McCoy, 486 U. S., at 442; see also Penson, 488 U. S.,
at 81-82.
In short, "simply putting pen to paper can often shed new light
on what may at first appear to be an open-and-shut issue."
Id., at 82, n. 4. For this reason, the Court is quite wrong
to say that requiring counsel to articulate reasons for its
conclusion results in "less effective advocacy."
Ante, at
272.2
An appellate court that employed a law clerk to review the trial
transcripts in all indigent appeals in search of arguable error
could be reasonably sure that it had resolved all of those appeals
"in a way that is related" to their merits. It would not, however,
provide the indigent appellant with anything approaching
representation by a paid attorney. Like
2 The
Wende procedure at issue in this case requires a
"summary of the proceedings and facts," but does not require
counsel to raise any legal issues.
People v.
Wende,
25 Cal. 3d 436, 438, 600 P. 2d 1071, 1072 (1979); see also
ante, at 265. This procedure plainly does not serve the
above purpose, since it does not force counsel to "put pen to
paper" regarding those things most relevant to an appeal-legal
issues. Accordingly, and contrary to the Court's assertion,
ante, at 280-281, this summary does not improve upon the
procedure rejected in
Anders-a "bare conclusion" by the
attorney that an appeal is without merit. 386 U. S., at 742.
292
California's so-called
Wende procedure, it would violate
the "principle of substantial equality" that was described in
Anders and
McCoy and has been a part of our law for
decades.
McCoy, 486 U. S., at 438;
Anders, 386 U. S.,
at 744.
JUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
A defendant's right to representation on appeal is limited by
the prohibition against frivolous litigation, and I realize that
when a lawyer's corresponding obligations are at odds with each
other, there is no perfect place to draw the line between them. But
because I believe the procedure adopted in
People v.
Wende, 25 Cal. 3d 436, 600 P. 2d 1071 (1979), fails to
assure representation by counsel with the adversarial character
demanded by the Constitution, I respectfully dissent.
I
Although the Sixth Amendment guarantees trial counsel to a
felony defendant, see
Gideon v.
Wainwright, 372 U. S. 335 (1963), the
Constitution contains no similarly freestanding, unconditional
right to counsel on appeal, there being no obligation to provide
appellate review at all, see
Ross v.
M offitt,
417 U. S. 600,
606 (1974). When a State elects to provide appellate review,
however, the terms on which it does so are subject to
constitutional notice. See,
e. g., Griffin v.
Illinois, 351
U. S. 12, 18 (1956);
Rinaldi v.
Yeager, 384 U. S. 305, 310
(1966); Evitts v.
Lucey, 469 U. S. 387, 393
(1985).
In a line of cases beginning with
Griffin, this Court
examined appellate procedural schemes under the principle that
justice may not be conditioned on ability to pay, see generally
Ross, supra, at 605-609. Even though "[a]bsolute equality is
not required,"
Douglas v.
California, 372 U. S. 353, 357
(1963), we held in
Douglas that when state criminal
defendants are free to retain counsel for a first appeal as of
right,
293
the Fourteenth Amendment 1 requires that indigent appellants be
placed on a substantially equal footing through the appointment of
counsel at the State's expense. See
McCoy v.
Court of
Appeals of Wis., Dist. 1,
486 U. S. 429, 438 (1988)
(referring to "principle of substantial equality").
Two services of appellate counsel are on point here. Appellate
counsel examines the trial record with an advocate's eye,
identifying and weighing potential issues for appeal. This is
review not by a dispassionate legal mind but by a committed
representative, pledged to his client's interests, primed to attack
the conviction on any ground the record may reveal. If counsel's
review reveals arguable trial error, he prepares and submits a
brief on the merits and argues the appeal.
The right to the first of these services, a partisan scrutiny of
the record and assessment of potential issues, goes to the
irreducible core of the lawyer's obligation to a litigant in an
adversary system, and we have consistently held it essential to
substantial equality of representation by assigned counsel. "The
paramount importance of vigorous representation follows from the
nature of our adversarial system of justice."
Penson v.
Ohio, 488 U. S.
75, 84 (1988). See,
e. g., Ellis v.
United
States, 356 U. S.
674, 675 (1958)
(per curiam); Douglas, supra, at
357-358;
McCoy, supra, at 438. The right is unqualified when
a defendant has retained counsel, and I can imagine no reason that
it should not be so when counsel has been appointed.
Because the right to the second service, merits briefing, is not
similarly unqualified, however, the issue we address
1 The
Griffin line of cases has roots in both due process
and equal protection, see
M. L. B. v. S.
L.
J., 519 U. S.
102, 120 (1996), but we have noted that "[m]ost decisions in
this area have rested on an equal protection framework ... ,"
Bearden v.
Georgia, 461 U. S. 660, 665
(1983). See also
Ross v.
Moffitt, 417 U. S. 600, 611 (1974)
(noting that right to appellate counsel "is more profitably
considered under an equal protection analysis").
294
today arises. The limitation on the right to a merits brief is
that no one has a right to a wholly frivolous appeal, see
Anders v.
California, 386 U. S. 738, 742
(1967), against which the judicial system's first line of defense
is its lawyers. Being officers of the court, members of the bar are
bound "not to clog the courts with frivolous motions or appeals,"
Polk County v.
Dodson, 454 U. S. 312, 323
(1981); see also
McCoy, supra, at 436, and this is of course
true regardless of a lawyer's retained or appointed status in a
given case. The problem to which
Anders responds arises when
counsel views his client's appeal as frivolous, leaving him duty
barred from pressing it upon a court.2
The rub is that although counsel may properly refuse to brief a
frivolous issue and a court may just as properly deny leave to take
a frivolous appeal, there needs to be some reasonable assurance
that the lawyer has not relaxed his partisan instinct prior to
refusing,3 in which case the court's review could never compensate
for the lawyer's failure of advocacy. A simple statement by counsel
that an appeal has no merit, coupled with an appellate court's
endorsement of counsel's conclusion, gives no affirmative
indication that anyone has sought out the appellant's best
arguments or championed his cause to the degree contemplated by the
adversary system. Nor do such conclusions acquire any implicit
per-
2 Anders addressed the problem as confronted by assigned
counsel, though in theory it can be equally acute when counsel is
retained. It is unlikely to show up in practice, however. Paying
clients generally can fire a lawyer expressing unsatisfying
conclusions and will often find a replacement with a keener eye for
arguable issues or a duller nose for frivolous ones. As a practical
matter, the States may find it too difficult or costly to prevent
moneyed appellants from wasting their own resources, and those of
the judicial system, by bringing frivolous appeals. This does not
mean, however, that the States are obligated to subsidize such
efforts by indigents.
3 An assurance, that is, that he has not become what is known
around the Los Angeles County Jail as a '"dumptruck.''' Reply Brief
for Petitioner 1.
295
suasiveness through exposure to an interested opponent's
readiness to mount a challenge. The government is unlikely to
dispute or even test counsel's evaluation; one does not berate an
opponent for giving up. To guard against the possibility, then,
that counsel has not done the advocate's work of looking hard for
potential issues, there must be some prod to find any reclusive
merit in an ostensibly unpromising case and some process to assess
the lawyer's efforts after the fact. A judicial process that
renders constitutional error invisible is, after all, itself an
affront to the Constitution. See
Penson, supra, at
81-82.
In
Anders, we devised such a mechanism to ensure respect
for an appellant's rights. See
Penson, supra, at 80. A
lawyer's request to withdraw on the ground that an appeal is
frivolous "must ... be accompanied by a brief referring to anything
in the record that might arguably support the appeal."
Anders, 386 U. S., at 744. This simply means that counsel
must do his partisan best, short of calling black white, to flag
the points that come closest to being appealable; the lawyer's job
is to state the issues that give the defendant his best chances to
prevail, even if the best comes up short under the rule against
trifling with the court. "[T]he court-not counsel-," we continued,
"then proceeds, after a full examination of all the proceedings, to
decide whether the case is wholly frivolous."
Ibid.
Anders thus contemplates two reviews of the record, each
of a markedly different character. First comes review by the
advocate, the defendant's interested representative. His job is to
identify the best issues the partisan eye can spot. Then comes
judicial review from a disinterested judge, who asks two questions:
whether the lawyer really did function as a committed advocate, and
whether he misjudged the legitimate appealability of any issue. In
reviewing the advocate's work, the court is responsible for
assuring that counsel has gone as far as advocacy will take him
with the best issues undiscounted. We have repeatedly de-
296
scribed the task of an appellate court in terms of this dual
responsibility. "'First, [the court] must satisfy itself that the
attorney has provided the client with a diligent and thorough
search of the record for any arguable claim that might support the
client's appeal. Second, it must determine whether counsel has
correctly concluded that the appeal is frivolous.'"
Penson,
488 U. S., at 83 (quoting
McCoy, 486
Griffin and
Anders thus require significantly more
than the abstract evaluation of the merits of conceivably
appealable points. Without the assurance that assigned counsel has
done his best as a partisan, his substantial equality to a lawyer
retained at a defendant's expense cannot be assumed. And without
the benefit of the lawyer's statement of strongest claims, the
appellate panel cannot act as a reviewing court, but is relegated
to an inquisitorial role.
It is owing to the importance of assuring that an adversarial,
not an inquisitorial, system is at work that I disagree with the
Court's statement today that our cases approve of any state
procedure that "reasonably ensures that an indigent's appeal will
be resolved in a way that is related to the merit of that appeal."
Ante, at 276-277. A purely inquisitorial system could
satisfy that criterion, and so could one that appoints counsel only
if the appellate court deems it useful. But we have rejected the
former and have explicitly held the latter unconstitutional, see
Douglas, 372 U. S., at 355, the reason in each case being
that the Constitution looks to the means as well as to the ends.4
See
Singer v.
United States, 380 U. S. 24, 36 (1965)
("The Constitution recognizes an adversary system as the proper
method of determining guilt ... "). See also,
e. g., Penson,
supra, at 87 ("A criminal appellant is entitled to a
single-minded advocacy ... ");
4 Of course, if appellate review is not constitutionally
required, States may well be able to impose nonadversarial review
on all appellants. They may not, however, reserve the adversary
system for those able to afford counsel.
297
Strickland v.
Washington, 466 U. S. 668, 685 (1984)
("The Sixth Amendment recognizes the right to the assistance of
counsel because it envisions counsel's playing a role that is
critical to the ability of the adversarial system to reach just
results");
United States v.
Cronic, 466 U. S. 648, 656 (1984)
("Thus, the adversarial process protected by the Sixth Amendment
requires that the accused have 'counsel acting in the role of an
advocate''') (quoting
Anders, supra, at 743).
II
We have not held the details of
Anders to be exclusive,
but it does make sense to read the case as exemplifying what
substantial equality requires on behalf of indigent appellants
entitled to an advocate's review and to reasonable certainty that
arguable issues will be briefed on their merits. With
Anders
thus as a benchmark, California's
Wende procedure fails to
measure up. Its primary failing is in permitting counsel to refrain
as a matter of course from mentioning possibly arguable issues in a
no-merit brief; its second deficiency is a correlative of the
first, in obliging an appellate court to search the record for
arguable issues without benefit of an issue-spotting, no-merit
brief to review. See 25 Cal. 3d, at 440-442,600 P. 2d, at
1074-1075.
Although
Wende assumes that counsel will act as an
advocate, see
id., at 441-442, 600 P. 2d, at 1075, it fails
to assure, or even promote, the partisan attention that the
Constitution requires. While the lawyer must summarize the
procedural and factual history of the case with citations to the
record, nothing in the
Wende scheme requires counsel to show
affirmatively, subject to evaluation, that he has made the
committed search for issues and the advocate's assessment of their
merits that go to the heart of appellate representation in our
adversary system. It begs the question to say that "[c]ounsel's
inability to find any arguable issues may readily be inferred from
his failure to raise any,"
id., at 442, 600 P. 2d, at 1075,
and it misses the point to argue that the
298
indigent appellant is adequately protected because the lawyer
assigned to a case under California's assigned counsel scheme may
not file a
Wende brief without the approval of a supervisor.
The point is the need for some affirmative and express indicator
that an advocate has been at work, in the form of a product that an
appellate court can specifically review.5 Thus
Anders
requires counsel to flag the best issues for the sake of keeping
counsel on his toes and giving focus to judicial review of his
judgment.
Wende on the other hand requires no indication of
conceivable issues and hence nothing specifically reviewable by a
court bound to preserve the system's adversary character.
Wende does no more to protect the indigent's right to
advocacy than the no-merit letter condemned in
Anders, or
the conclusory statement disapproved in
Penson.
On like reasoning,
Wende is deficient in relying on a
judge's nonpartisan review to assure that a defendant suffers no
prejudice at the hands of a lawyer who has failed to document his
best effort at partisan review. Exactly because our system assumes
that a lawyer committed to a client is the most dependable guardian
of the client's interest, see
supra, at 296-297, we have
consistently rejected procedures leaving the determination of
frivolousness to the court in the first instance, see
Douglas,
supra, at 355-356, or to the court following a conclusory
declaration by counsel, see
Penson, supra, at 81-82, or to
the court assisted by counsel in the role of
amicus curiae,
see
Ellis, 356 U. S., at 675. The defect in these procedures
is their entire reliance on review by a detached magistrate who
does not apply the partisan scrutiny in the first instance that
defendants with paid lawyers get as a matter of course.
5 Since the state petitioner's claims that the lawyer's
unrevealing and conclusory certification has been approved by a
superior are neither here nor there on my analysis, I need not
evaluate assertions by
amicus Delgado that there is no
scheme of assigned representation uniform throughout the State, see
Brief for Jesus Garcia Delgado as
Amicus Curiae 8.
299
It goes without saying, too, that
Wende's reliance on
judges to start from scratch in seeking arguable issues adds
substantially to the burden on the judicial shoulders. While I have
no need to decide whether this drawback of the
Wende scheme
is of constitutional significance, it raises questions that
certainly underscore the constitutional failing of relying on
judicial scrutiny uninformed by counsel's partisan analysis. In an
amicus brief filed in this case, 13 retired justices of the
Supreme Court or Courts of Appeal of California have pointed out
the "risk that the review of the cold record [under the
Wende scheme] will be more perfunctory without the
issue-spotting guidance, and associated record citations, of
counsel." Brief for Retired Justice Armand Arabian et al. as
Amici Curiae 5. The
amici have candidly represented
that "[w]hen a California appellate court receives a
Wende
brief, it assigns the case to a staff attorney who prepares a
memorandum analyzing all possible legal issues in the case.
Typically, the staff attorney then makes an oral presentation to
the appellate panel .... "
Id., at 6. When the
responsibility of counsel is thrown onto the court, the court gives
way to a staff attorney; it could not be clearer that
Wende
is seriously at odds with the respective obligations of counsel and
the courts as contemplated by the Constitution.
III
Unlike the Court, I reach the question of appropriate relief.
With respect to respondent's
Anders claim, the Court of
Appeals premised its disposition on finding that two potentially
meritorious issues showed that Robbins had been prejudiced by the
failure of the
Wende scheme to result in their litigation. I
think it unnecessary to invoke such findings, however, and would
hold for Robbins simply because of the failure to provide an
advocate's analysis of issues as a predicate of court review.
Without more, I would, in effect, require the state courts to
reinstate the appeal for treatment consistent with the
Anders application of
Griffin.
300
It is true, of course, that before relief is normally granted
for want of adequate assistance of trial counsel, a defendant must
show not only his lawyer's failure to represent him with reasonable
competence (demonstrated here by the failure to file an advocate's
issue-spotting brief), but also a "reasonable probability" that
competent representation would have produced a different result in
his case, see
Strickland, 466 U. S., at 694. But the
assumption behind
Strickland's prejudice requirement is that
the defendant had a lawyer who was representing him as his advocate
at least at some level, whereas that premise cannot be assumed when
a defendant receives the benefit of nothing more than a
Wende brief. In a
Wende situation, nominal counsel is
functioning merely as a friend of the court, helping the judge to
grasp the structure of the record but not even purporting to
highlight the record's nearest approach to supporting his client's
hope to appeal. Counsel under
Wende is doing less than the
judge's law clerk (or a staff attorney) might do, and he is doing
nothing at all in the way of advocacy. When a lawyer abandons the
role of advocate and adopts that of
amicus curiae, he is no
longer functioning as counselor rendering assistance within the
meaning of the Sixth Amendment. See
Cronic, 466 U. S., at
654-655. Since the apparently missing ingredient of the advocate's
analysis goes to the very essence of the right to counsel, a lawyer
who does nothing more than file a
Wende brief is closer to
being no counsel at all than to being subpar counsel under
Strickland.
This, I think, is the answer to any suggestion that a specific
assessment of prejudice need be shown in order to get relief from
Wende. A complete absence of counsel is a reversible
violation of the constitutional right to representation, even when
there is no question that at the end of the day the smartest lawyer
in the world would have watched his client being led off to prison.
See
Cronic, supra, at 658659; cf.
Rodriquez v.
United States, 395 U. S. 327 (1969). We
do not ask how the defendant would have fared if he had
301
been given counsel, and we should not look to what sort of
appeal might have ensued if an appellant's lawyer had flagged the
points that came closest to appealable issues. Such a result is
equally consistent with our cases holding a violation of due
process to be complete when a defendant is denied a right to the
appeal he is otherwise entitled to pursue. See
Peguero v.
United States, 526 U. S. 23, 30-31 (1999)
(O'CONNOR, J., concurring);
Rodriquez, supra, at 330.6
This conclusion was anticipated in
Penson, in which we
dealt with the violation of
Anders standards when counsel
was allowed to withdraw without supplying the court with his best
effort to identify appealable weaknesses, and prior to any judicial
determination that counsel had missed nothing in finding no
arguable appellate issues in the record. The appellate court in
Penson subsequently identified arguable issues but thought
the appointment of new counsel unnecessary after finding that any
legitimately appealable issues would be losers. This Court
recognized a presumption of prejudice without more, for purposes of
both
Strickland and
Chapman v.
California,
386 U. S. 18
(1967). See
Penson, 488 U. S., at 85-86. Although the state
court's failure to appoint counsel after identifying issues made
Penson an egregious case,
id., at 83, the failure of
advocacy and consequent constructive absence of counsel was clear
even at the point at which the lawyer withdrew,
id., at 82,
and the presumption of prejudice applicable then is applicable in
this case now.
There is practical sense as well as good theory behind this
presumption of prejudice, for any requirement to demonstrate
prejudice specifically would often place federal judges on habeas
in highly precarious positions calling for judgments that state
judges are generally better qualified to
6 Although this habeas proceeding began on February 24, 1994,
and is therefore not governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), see
Lindh v.
Murphy, 521 U.
S. 320 (1997), the result should be no different in a
post-AEDPA case. See
infra, at 303.
302
make. Since there will have been no advocate's help in analyzing
the record on the direct state appeal, and since counsel may well
have been absent formally as well as constructively in any state
postconviction proceedings, the federal judge would be looking for
(among other things) previously unidentified state-law issues not
previously waived. One could not ask for a more certain guarantee
of inefficient and time consuming judicial effort.7
What remains is only to say a word about the State's argument
that relief in this case is barred under
Teague v.
Lane, 489 U.
S. 288 (1989), as requiring application of a new rule of law
not clearly entailed by our prior holdings. The argument seems to
be that California has relied on
Wende for so long that any
disapproval from a federal court at this juncture is some sort of
novelty (resulting from the failure of other state defendants to
reach the federal courts earlier with
Wende objections). The
obvious answer is that the application of
Douglas and
Griffin standards to meritless appeals has been subject to
repeated explanation starting with
Anders and echoed in
McCoy and
Penson. Once general rules are announced
they do not become "new" again with every particular violation that
may subsequently occur. See
Saffle v.
Parks, 494 U. S. 484, 491-492
(1990) (discussing application of the rule of
Jurek v.
Texas, 428 U.
S. 262 (1976),
7 Since a
Wende case is like a denial of counsel, it
would make no more sense to give the State an option to demonstrate
no prejudice under
Chapman v.
California, 386 U. S. 18 (1967), or
Brecht v.
Abrahamson, 507 U. S. 619 (1993),
than it would to require a defendant to show it under
Strickland v.
Washington, 466 U. S. 668 (1984). The
presumption of prejudice does not, however, promise relief to every
California defendant whose appeal was dismissed as frivolous and
against whom the statute of limitations has not run, see 28 U. S.
C. § 2244(d)(I) (1994 ed., Supp. III). One submission before us
claims that the
Wende scheme has not supplanted
Anders v.
California, 386 U. S. 738 (1967),
throughout California. See Brieffor Jesus Garcia Delgado as
Amicus Curiae 9-10. Briefs that measure up according to the
standards adumbrated in
Anders would of course receive
standard
Strickland analysis.
303
in
Penry v.
Lynaugh, 492 U. S. 302 (1989)).
The same point, of course, would answer any objection under the
AEDPA that an
Anders petitioner was seeking to go beyond
"clearly established Federal law, as determined by the Supreme
Court of the United States," 28 U. S. C. § 2254(d)(1) (1994 ed.,
Supp. III).
***
The
Wende procedure does not assure even the most minimal
assistance of counsel in an adversarial role. The Constitution
demands such assurances, and I would hold Robbins entitled to an
appeal that provides them.
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