Anders v. State of California, No. 98

CourtUnited States Supreme Court
Writing for the CourtCLARK
Citation386 U.S. 738,18 L.Ed.2d 493,87 S.Ct. 1396
Decision Date08 May 1967
Docket NumberNo. 98
PartiesCharles Robert ANDERS, Petitioner, v. STATE OF CALIFORNIA

386 U.S. 738
87 S.Ct. 1396
18 L.Ed.2d 493
Charles Robert ANDERS, Petitioner,



No. 98.
Argued March 14, 1967.
Decided May 8, 1967.
Rehearing Denied June 12, 1967.

See 388 U.S. 924, 87 S.Ct. 2094.

Page 739

Ira Michael Heyman for petitioner.

George J. Roth, Los Angeles, for respondent.

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; 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

Page 740

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

Page 741

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. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (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 dfe ndant on his first appeal. Beginning with Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (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, 76 S.Ct. at 591, and continuing through Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (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, 83 S.Ct. at 817. 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 good faith, Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957), and such representation must be in the role of an advocate, Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 975, 2 L.Ed.2d 1060 (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, 78 S.Ct. at 975.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (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 poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.' At 344, 83 S.Ct. at 796. We continue to adhere to these principles.


In petitioner's case, his appointed counsel wrote the District Court of Appeal, stating:

'I will not file a brief on appeal as I am of the opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained may views and opinions to him * * *. (H)e wishes to file a brief in this matter on his own behalf.'

The District Court of Appeal, after having examined the record, affirmed the conviction. We believe that counsel's bare conclusion, as evidenced by his letter, was not enough. It smacks of the treatment that Eskridge received, which this Court condemned, that permitted a trial judge to withhold a transcript if he found that a defendant 'has been accorded a fair and impartial trial, and in the Court's opinion no grave or prejudicial errors occurred therein.' Eskridge v. Washington State Board, 357 U.S. 214, 215, 78 S.Ct. 1061, 1062, 2 L.Ed.2d 1269 (1958). Such a procedure, this Court said, 'cannot be an adequate substitute for the right to full appellate review available to all defendants'

Page 743

who may not be able to afford such an expense. At 216, 78 S.Ct. at 1062. And in still another case in which 'a state officer outside the judicial system' was given the power to deprive an indigent of his appeal by refusing to...

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65503 practice notes
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    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
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