Miller v. Smith

• Decision Date: 23 May 1997
• Docket Number: No. 95-7521,95-7521
• Citation: 115 F.3d 1136
• Parties: Bernard Eric MILLER, Petitioner-Appellant, v. William SMITH; Attorney General of the State of Maryland, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1136

115 F.3d 1136

Bernard Eric MILLER, Petitioner-Appellant, v. William SMITH; Attorney General of the State of Maryland Respondents-Appellees.

No. 95-7521.

United States Court of Appeals Fourth Circuit.

Argued March 4, 1997.

Decided May 23, 1997.

ARGUED: Laurack Doyle Bray, Washington, DC, for Appellant. Carmen Mercedes Shepard, Office of the Attorney General of Maryland, Baltimore, MD, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Evelyn O. Cannon, Assistant Attorney General, Kathleen Hoke Dachille, Assistant Attorney General, Baltimore, MD, for Appellees.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, ^* WILKINS, HAMILTON, LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Affirmed by published opinion. Judge HAMILTON wrote the majority opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, WILKINS, LUTTIG, and WILLIAMS joined. Judge MURNAGHAN wrote a dissenting opinion, in which Judges HALL and MICHAEL joined.

OPINION

HAMILTON, Circuit Judge:

Under Maryland law, as a prerequisite to obtaining a free trial transcript in connection with an appeal, an indigent criminal defendant must first apply for legal representation with the Public Defender's Office. See Maryland Rule 1-325(b). ¹ A trial transcript is provided to an indigent criminal defendant if, following his application for legal representation with the Public Defender's Office, the Public Defender's Office represents the indigent criminal defendant or the Public Defender's Office declines to represent the indigent criminal defendant. See Md. Ann.Code art. 27A; Maryland Rule 1-325(b). Following his convictions in Maryland state court, petitioner, Bernard Miller, moved the state trial court to order the State of Maryland to pay the cost of preparing his trial transcript in connection with his appeal even though he refused to apply for legal representation with the Public Defender's Office. Miller refused to apply for legal representation with the Public Defender's Office because he retained the services of a private attorney willing to handle the appeal pro bono. Pursuant to Maryland Rule 1-325(b), the state trial court denied Miller's request for a trial transcript. The issue presented in this appeal is whether the state trial court's denial of Miller's motion for a trial transcript violated his Sixth Amendment right to counsel of choice and his rights guaranteed by the Equal Protection and Due Process Clauses of the Fourteenth Amendment. For the reasons stated below, we conclude Miller's constitutional rights were not violated in this case.

I

Miller was one of two men charged with the kidnapping, robbery and murder of Pamela Basu. Prior to trial, Miller, as an indigent, was offered representation through the Public Defender's Office, but declined. He was represented at trial by Laurack Bray, an attorney whom he privately engaged. Bray agreed to represent Miller pro bono. Following a jury trial, Miller was convicted of several offenses, including felony murder. He was sentenced to life plus ten years. Miller noted a timely appeal.

While his appeal was pending, Miller filed a motion in the state trial court requesting the State of Maryland to pay the cost of preparing his trial transcript. Because Miller had not requested representation through the Public Defender's Office and because Bray refused to seek appointment by the Public Defender's Office, the state trial court denied the motion pursuant to Maryland Rule 1-325(b). Miller timely appealed the denial of his motion for a trial transcript to the Court of Special Appeals of Maryland, contending that Maryland Rule 1-325(b) violated his Sixth Amendment right to counsel of choice and his rights guaranteed by the Equal Protection and Due Process Clauses of the Fourteenth Amendment.

The Court of Special Appeals reversed. The Court of Special Appeals held that, under Maryland Rule 1-325(b), "where an indigent appellant who would otherwise qualify for representation by the Public Defender chooses to be represented by a qualified private attorney and that attorney elects to represent the appellant without fee of any kind or from any person, strictly on a pro bono basis, the Public Defender is obliged to provide the necessary transcript." Miller v. State, 98 Md.App. 634, 635 A.2d 1, 6 (1993). In reaching its conclusion, the Court of Special Appeals interpreted the legislative history of Maryland Rule 1-325(b) as evincing an intent to provide a transcript under the circumstances of this case. Id. Because the statutory question was dispositive, the Court of Special Appeals did not address Miller's constitutional arguments.

The State of Maryland then appealed to the Court of Appeals of Maryland. That court reversed. The Court of Appeals disagreed with the Court of Special Appeals' interpretation of Maryland Rule 1-325(b), concluding that Maryland Rule 1-325(b) required Miller to "apply to the Public Defender and be represented by, or refused representation by, that office before he can receive a free transcript." State v. Miller, 337 Md. 71, 651 A.2d 845, 849 (1994). The Court of Appeals also rejected Miller's Fourteenth Amendment claim, reasoning that there could be no Fourteenth Amendment violation "when an individual is denied a right simply because of his own failure to comply with reasonable state procedures and regulations." Id., 651 A.2d at 852. Finally, the Court of Appeals rejected Miller's Sixth Amendment argument. The court concluded that, "[i]n the absence of[a constitutional right to counsel of choice], there is no constitutional violation when the State requires that an indigent defendant avail himself of the services of the Office of the Public Defender in order to obtain a free transcript." Id., 651 A.2d at 853.

Miller then filed a petition for writ of habeas corpus in the United States District Court for the District of Maryland. See 28 U.S.C. § 2254. Following the recommendation of a magistrate judge, the district court denied the petition. Miller appealed to this court, and a divided panel of this court reversed. See Miller v. Smith, 99 F.3d 120 (4th Cir.1996). Thereafter, a majority of the active circuit judges on this court voted to vacate the panel opinion and rehear this case en banc. ² We now affirm.

II

Miller contends that the state trial court's denial of his motion for a trial transcript pursuant to Maryland Rule 1-325(b) violated his rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. We disagree.

Over the past forty years, the Supreme Court has, on numerous occasions, addressed the appellate rights of indigents. The landmark case, of course, is Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (plurality). Griffin involved an Illinois rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of Illinois only if he procured a transcript of the testimony adduced at his trial. Id. at 13 n. 2, 76 S.Ct. at 588 n. 2. The Illinois rule provided no exception for an indigent defendant, other than one sentenced to death. Id. at 13-14 and n. 2. Consequently, a defendant who was unable to pay the cost of obtaining a transcript could not obtain appellate review of the asserted trial error. The Supreme Court invalidated the Illinois rule because once a state establishes appellate review, the state cannot "bolt the door to equal justice." Id. at 24, 76 S.Ct. at 593 (Frankfurter, J., concurring in the judgment).

In subsequent cases, the Supreme Court invalidated similar financial barriers to appellate review, while at the same time reaffirming the principle established in McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894), that a State is not obligated to provide appellate review for criminal defendants. See Lane v. Brown, 372 U.S. 477, 482-485, 83 S.Ct. 768, 771-774, 9 L.Ed.2d 892 (1963) (invalidating an Indiana rule that, on appeal from the denial of a writ of error coram nobis, only the public defender could obtain a free transcript of the lower court's hearing on the coram nobis application; if the public defender refused to represent the applicant, no transcript was provided, and, as a result, the applicant had no appeal at all); Draper v. Washington, 372 U.S. 487, 497-500, 83 S.Ct. 774, 779-781, 9 L.Ed.2d 899 (1963) (invalidating rule that an indigent criminal defendant could only obtain a free trial transcript if he demonstrated to the trial court that his contentions on appeal would not be frivolous); Burns v. Ohio, 360 U.S. 252, 256-58, 79 S.Ct. 1164, 1168-1169, 3 L.Ed.2d 1209 (1959) (invalidating rule requiring $20 filing fee in order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction).

The Supreme Court has also applied Griffin beyond the transcript and fee context to cases involving the adequacy of an indigent's access to the appellate system. For example, in Douglas v. California, the Court held unconstitutional California's requirement that appellate counsel be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself. 372 U.S. 353, 357-58, 83 S.Ct. 814, 816-817, 9 L.Ed.2d 811 (1963). The Court observed that the California requirement at issue lacked the "equality demanded by the Fourteenth Amendment 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 ... is forced to shift for himself." Id. at 358, 83 S.Ct. at 817. The California requirement, according to the Court, left an "indigent, where the record is unclear or the errors are hidden," with "a meaningless ritual, while the rich man [enjoyed] a meaningful appeal." Id.

But, the Supreme Court has also recognized limits on...