386 U.S. 738 (1967), 98, Anders v. California

Docket Nº:No. 98
Citation:386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
Party Name:Anders v. California
Case Date:May 08, 1967
Court:United States Supreme Court

Page 738

386 U.S. 738 (1967)

87 S.Ct. 1396, 18 L.Ed.2d 493




No. 98

United States Supreme Court

May 8, 1967

Argued March 14, 1967



Counsel, appointed by a California appellate court on petitioner's motion to prosecute the appeal of his felony conviction, concluded after studying the record and consulting with petitioner that there was no merit to the appeal, and so advised the court. He also advised it that petitioner wished to file a brief in his behalf. Petitioner's request for another attorney was denied. He then filed a brief pro se and a reply brief to the State's response. The appellate court, after examining the record, affirmed the conviction. Six years later, petitioner, seeking to reopen his case on the ground that he had been deprived of the right to counsel on his appeal, filed in the appellate court an application for habeas corpus, which the court denied the same day. The court stated that it had again reviewed the record and determined the appeal to be "without merit" (but failed to say whether it was frivolous or not), and that the procedure here followed the California system for handling indigents' appeals approved by that State's Supreme Court as meeting the requirements of Douglas v. California, 372 U.S. 353. Claiming, inter alia, that the judge and prosecutor had erroneously commented on his failure to testify, petitioner filed with the State Supreme Court an application for habeas corpus, which that court denied without giving any reason for its decision.

Held: The failure to grant this indigent petitioner seeking initial review of his conviction the services of an advocate, as contrasted with an amicus curiae, which would have been available to an appellant with financial means, violated petitioner's rights to fair procedure and equality under the Fourteenth Amendment. Pp. 741-745.

(a) This Court has consistently held invalid those procedures on the first appeal of a conviction where the rich man who appeals as of right enjoys the full benefits of counsel, while the indigent "is forced to shift for himself." Douglas v. California, supra, at 358. P. 741.

(b) The Sixth Amendment's requirements for the right to counsel are made obligatory upon the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335. P. 742.

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(c) Counsel's bare no-merit conclusion was not an adequate substitute for petitioner's right to full appellate review. To satisfy the requirement of substantial equality and fair process, counsel must be an active advocate, not just an amicus curiae. Pp. 742-743.

(d) If counsel conscientiously decides that the appeal is wholly frivolous, he should so advise the court and request permission to withdraw, at the same time furnishing the court and the indigent with a brief of anything in the record arguably supporting the appeal. P. 744.

(e) If, after full review, the court finds any legal points arguable, it must appoint counsel to argue the appeal; otherwise, it may dismiss the appeal as far as federal requirements are concerned or decide the case on the merits if state law requires. P. 744.

Reversed and remanded.

CLARK, J., lead opinion

MR. JUSTICE CLARK delivered the opinion of the Court.

We are here concerned with the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction after that attorney has conscientiously determined that there is no merit to the indigent's appeal.

After he was convicted of the felony of possession of marijuana, petitioner sought to appeal and moved that the California District Court of Appeal appoint counsel for him. Such motion was granted; [87 S.Ct. 1398] however, after a study of the record and consultation with petitioner, the appointed counsel concluded that there was no merit to the appeal. He so advised the court by letter, and, at the same time, informed the court that petitioner wished

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to file a brief in his own behalf. At this juncture, petitioner requested the appointment of another attorney. This request was denied, and petitioner proceeded to file his own brief pro se. The State responded, and petitioner filed a reply brief. On January 9, 1959, the District Court of Appeal unanimously affirmed the conviction, People v. Anders, 167 Cal.App.2d 65, 333 P.2d 854.

On January 21, 1965, petitioner filed an application for a writ of habeas corpus in the District Court of Appeal in which he sought to have his case reopened. In that application, he raised the issue of deprivation of the right to counsel in his original appeal because of the court's refusal to appoint counsel at the appellate stage of the proceedings.1 The court denied the application on the same day, in a brief unreported memorandum opinion. The court stated that it "ha[d] again reviewed the record, and [had] determined the appeal [to be] without merit." The court also stated that "the procedure prescribed by In re Nash, 61 A.C. 538, was followed in this case. . . ."2 On June 25, 1965, petitioner submitted a petition for a writ of habeas

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corpus to the Supreme Court of California, and the petition was denied without opinion by that court on July 14, 1965. Among other trial errors, petitioner claimed that both the judge and the prosecutor had commented on his failure to testify, contrary to the holding of this Court in Griffin v. California, 380 U.S. 609 (1965). We have concluded that California's action does not comport with fair procedure, and lacks that equality that is required by the Fourteenth Amendment.


For a decade or more, a continuing line of cases has reached this Court concerning discrimination against the indigent defendant on his first appeal. Beginning with Griffin v. Illinois, 351 U.S. 12 (1956), where it was held that equal justice was not afforded an indigent appellant where the nature of the review "depends on the amount of money he has," at 19, and continuing through Douglas v. California, 372 U.S. 353 (1963), this Court has consistently held invalid those procedures

where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.

At 358. Indeed, in the federal courts, the advice of counsel has long been required whenever a defendant challenges a certification that an appeal is not taken in [87 S.Ct. 1399] good faith, Johnson v. United States, 352 U.S. 565 (1957), and such representation must be in the role of an advocate, Ellis v. United States, 356 U.S. 674, 675 (1958), rather than as amicus curiae. In Ellis, supra, we concluded:

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

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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.

At 675. In Gideon v. Wainwright, 372 U.S. 335 (1963), the Sixth Amendment's requirement that "the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence" was made obligatory on the States by the Fourteenth Amendment, the Court holding that,

in our adversary system of criminal justice, any person haled into court, who is too...

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