High v. Rhay, 74-1161

• Decision Date: 18 June 1975
• Docket Number: No. 74-1161,74-1161
• Citation: 519 F.2d 109
• Parties: In the Matter of the Application for a Writ of Habeas Corpus for Larry C. HIGH, Petitioner-Appellant, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 109

519 F.2d 109

In the Matter of the Application for a Writ of Habeas Corpus

for Larry C. HIGH, Petitioner-Appellant, v. B. J. RHAY, Superintendent, Washington State Penitentiary,

Respondent-Appellee.

No. 74-1161.

United States Court of Appeals, Ninth Circuit.

June 18, 1975.

Barbara A. Isenhour, Seattle, Wash., John Stait, Univ. of Puget Sound School of Law, Tacoma, Wash., Allen Ressler, Prison Legal Services, Seattle, Wash., for petitioner-appellant.

Slade Gorton, Atty. Gen., Olympia, Wash., for respondent-appellee.

OPINION

Before LUMBARD, ^* KOELSCH and WRIGHT, Circuit Judges.

LUMBARD, Circuit Judge:

Larry C. High, who is presently serving a sentence of twenty years in a Washington state prison following his convictions in August 1971 for rape, sodomy, and assault in the second degree, appeals from an order of the district court for the Western District of Washington, Sharp, J., denying his petition for a writ of habeas corpus.

After hearing argument on November 14, 1974, this court, on February 4, 1975, affirmed the order of the district court, with one judge dissenting. Thereafter, High petitioned for re-hearing and upon reconsideration this court is of the opinion that the petition should be granted and that the order of the district court should be reversed. Accordingly the opinion of February 4, 1975 is vacated.

We find that High has not been accorded due process and equal protection of the laws, in view of the state's failure to see that on his criminal appeal High had legal representation which complied with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and accordingly, we reverse.

I.

High was tried in August 1971 in the Superior Court of Kitsap County, Washington and was represented by retained counsel. The trial record discloses sharp issues of fact in the testimony of the defendant and the testimony of the complainant who alleged that on April 13, 1971, High forced her to commit sodomy and then raped her. The case was tried to a judge, without a jury, and his finding of guilt delivered from the bench at the conclusion of the trial discusses in some detail the discrepancies in the state's case and in the testimony of the defendant.

By the time of his appeal from this conviction, High was indigent, and James Munro, Esq., was assigned by the trial (Superior) court to represent him. On January 17, 1972, Munro filed a four-page "Brief of Appellant," which is set forth in full below. ¹ In this brief counsel did not make even a minimal statement of the facts which were relevant to the appeal. The single "Assignment of Error" was that the trial court erred in finding the defendant guilty. In a three-sentence, eighty-five-word section entitled "Argument of Counsel," the court was simply invited to review the transcript to determine whether the evidence established that High was guilty beyond a reasonable doubt. Munro also listed in his "Statement of the Case" seven additional claims of error which High had urged him to make. He stated that he had given these issues "due consideration," but he did not include them in the section entitled "Assignment of Error." After submitting this brief, Munro waived oral argument.

High was not satisfied with this brief and moved to have Munro discharged and new counsel appointed. At no time did Munro himself seek to withdraw. The Washington Court of Appeals denied High's motion. High then filed his own hand-written, forty-page supplemental brief, as well as a reply brief in response to the state's brief. The Washington Court of Appeals, in an eight-page unpublished opinion, affirmed High's conviction. The court reviewed the transcript and found the evidence sufficient to sustain the conviction. It also specifically addressed High's other arguments which had been noted by Munro and argued by High in his own brief. Following this decision, High's pro se petition for rehearing was denied, and the Washington Supreme Court denied a pro se petition for review. Subsequently High brought a state petition for a writ of habeas corpus, which was also denied.

Having exhausted state remedies, High brought the present habeas corpus petition in federal court, alleging primarily that he had inadequate legal representation at trial and on appeal. ² The district court, having reviewed the trial transcript, concluded that High was ably represented at trial. With respect to High's representation on appeal, the district court stated that the constitutional standards set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), are reduced if the appeal presents no substantial constitutional question. It found that the brief filed by Munro was not so ineffective as to violate Anders or to make the appeal a farce or mockery of justice. This appeal followed, with appellant being represented by the Legal Services Center of Seattle.

II.

The sharp conflict between the testimony of the defendant and the complaining witness, coupled with the numerous discrepancies in the state's case, forms at least the basis for a non-frivolous argument that the evidence did not establish guilt beyond a reasonable doubt. There is no indication that counsel considered such an argument frivolous. By making insufficiency of the evidence his sole assignment of error, Munro distinguished it from the seven other issues High sought to have him argue.

Appointed counsel, in such a situation, has a duty under Anders not only to raise such a non-frivolous argument, but to advocate it conscientiously on appeal. Anders v. California, 386 U.S. at 744-45, 87 S.Ct. 1396; see ABA Standards, Criminal Appeals § 3.2(b)(ii) (1970) and commentary thereto. The very nature of the case required the consideration of much of the often conflicting evidence in order to decide whether the evidence could support a finding of guilty beyond a reasonable doubt. Moreover, even if Munro had thought that the argument and the appeal were frivolous, he still would have had a duty, under Anders, to advise the court of anything in the record which might arguably support the appeal. 386 U.S. at 744-45, 87 S.Ct. 1396; see Vanhook v. Craven, 419 F.2d 1295, 1296 (9th Cir. 1969). This guards against any temptation on the part of appointed counsel to discharge an obligation to the client in a summary fashion, see Nickols v. Gagnon, 454 F.2d 467, 470 (7th Cir. 1971), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336 (1972), and enables the court to review the record itself more effectively, see Anders v. California, 386 U.S. at 745, 87 S.Ct. 1396.

Here Munro, in three sentences, merely stated the simple question of the sufficiency of the evidence and invited the court to review the entire transcript itself. On these generalities he submitted the case to the court without oral argument. Counsel failed to make even a minimal statement of the facts which are relevant to the issues on appeal. The "brief" is worthless. It could not have required more than five minutes to draft. No client in his right mind would pay one cent for such a performance. It is difficult to understand how the Washington Court of Appeals could accept such a brief and thereafter deny High's motion to relieve Munro and to designate new counsel. There is no indication that that court felt that High's appeal was wholly frivolous. And even under Anders a court hearing the first appeal from a criminal conviction should still have before it a "brief" by counsel referring to anything in the record which might arguably support the appeal before making a determination that that appeal is wholly frivolous. High's own pro se briefs were no adequate substitute for the advocacy of experienced counsel. In accepting Munro's "brief" and in denying High's motion to have Munro discharged and new counsel appointed, the state court failed to follow the clear mandate of Anders.

The district court, which denied High's petition for a writ of habeas corpus, erred when it stated that the requirements of Anders are lower where there is no substantial constitutional question involved in an appeal. Whether issues to be raised by counsel are of constitutional dimension is irrelevant for the purposes of Anders, which was concerned with the adequacy of a defendant's representation in raising whatever arguments can be made on appeal for either reversal or a new trial.

It is true that the Washington Court of Appeals has given careful and thorough consideration to the very points which assigned counsel could make on a second appeal from High's conviction. It is also true that the probabilities are that any review of the record, in light of all the arguments which diligent and experienced counsel may make for High, will still result in affirmance of the conviction. Nevertheless, High has a right to have an advocate present his case to the Washington Court of Appeals. ³ Under our adversary system, it has become a well-established principle that there is no substitute for counsel who acts as an advocate and who makes the best arguments he can on the facts and the law. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The appellant may not be deprived of the benefit of such appellate representation because his court-appointed counsel fails to perform his clear duty.

The decision of the district court is reversed and the case remanded to the district court, which is directed to grant the writ of habeas corpus unless within a reasonable time the state assigns new counsel and the appeal from High's 1971 convictions is heard and considered again.

EUGENE A. WRIGHT, Circuit Judge (dissenting):

Respectfully, I dissent. Judge Lumbard has skillfully recited the facts and has commented on the worth of the brief filed with the Washington Court of Appeals. I agree that the brief is not an example of appellate advocacy at its best. But, I see in this record that Mr. Munro found himself in a dilemma.

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