United States Supreme Court
Case Summaries 2000
(3/20/00 -No. 98-1037))

Criminal Law

SMITH, WARDEN v. ROBBINS (3/20/00 - No. 98-1037)

Certiorari to the United States Court of Appeals for the Ninth Circuit
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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=386&invol=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 state-court 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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=386&page=744.
The District Court agreed, concluding that there were at least two
issues that might arguably have supported Robbins's 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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=372&invol=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 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. 6-13.
(a) In finding that the California procedure at issue in
Anders--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--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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=351&invol=12,
 and continuing with Douglas v. California, 372 U. S. 353
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=372&invol=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. 6-9.
(b) The Ninth Circuit erred in finding that Anders's 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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=486&invol=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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=481&invol=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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=488&invol=75,
the Court described Anders as simply erecting safeguards. Finally,
any view of the procedure described in Anders's 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 requirements 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
system--avoids 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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=497&invol=261
(O'Connor, J., concurring). Pp. 9-13.

2. California's Wende procedure does not violate the Fourteenth
Amendment. Pp. 13-22.
(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's
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. 14-16.
(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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=357&invol=214,
and Lane v. Brown, 372 U. S. 477
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=372&invol=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, 488 U. S.75
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=488&invol=75, 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. 16-19.
(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
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=466&invol=648&pageno=665, n. 38.
 It is enough to say that the Wende procedure,
like the Anders and McCoy procedures, and unlike the ones in, e.g., Douglas
and Penson, affords adequate and effective appellate review for criminal
indigents. Pp. 19-22.
3. This case is remanded for the Ninth Circuit to evaluate Robbins's
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's claim on remand is that enunciated in
Strickland v. Washington, 466 U. S. 668
http://caselaw.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=466&invol=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.
22-27.
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. Souter, J., filed a
dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined.
To read the full text of this opinion, go to:
http://laws.findlaw.com/US/000/98-1037.html   
SMITH, WARDEN v. ROBBINS No. 98-1037-FCP




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