Mylar v. State of Ala., No. 81-7412

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Before MORGAN, JOHNSON and HENDERSON; JOHNSON
• Citation: 671 F.2d 1299
• Decision Date: 01 April 1982
• Docket Number: No. 81-7412
• Parties: Danny Ray MYLAR, a/k/a Danny Ray Miles, Plaintiff-Appellant, v. STATE of ALABAMA, Defendant-Appellee.

Page 1299

671 F.2d 1299 Danny Ray MYLAR, a/k/a Danny Ray Miles, Plaintiff-Appellant,
v.
STATE of ALABAMA, Defendant-Appellee. No. 81-7412. United States Court of Appeals,
Eleventh Circuit. April 1, 1982.

Page 1300

Linda B. Friedman (court-appointed), Birmingham, Ala., for plaintiff-appellant.

Joseph G. L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before MORGAN, JOHNSON and HENDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

We are again called upon to determine whether a criminal defendant received effective assistance from his attorney. Concluding that counsel's failure to file a brief with the direct appeal in state court amounted to ineffective assistance in contravention of the Sixth Amendment, we reverse and remand with instructions.

Appellant Danny Ray Mylar was convicted of first degree murder and sentenced to life imprisonment. The facts surrounding his sordid crime are adequately set forth in the appellate court's opinion and need not be repeated here. Miles v. State, 343 So.2d 801 (Ala.Crim.App.), cert. denied, 343 So.2d 806 (Ala.1977). Following the trial, Mylar sought appellate review of the conviction. His attorney, however, failed to file a brief with the appeal. Under Alabama law, counsel need not file a brief in order to perfect the appeal. ¹ The Alabama Court of Criminal Appeals reviewed the record for error as required by statute and affirmed the conviction. ² Mylar unsuccessfully petitioned for rehearing and a writ of certiorari. In both instances, his attorney filed briefs. ³

After exhausting state remedies, Mylar sought habeas relief in federal district court. He raised a plethora of issues, including ineffective assistance of counsel. A federal magistrate meticulously reviewed the many issues and determined that most were without merit. He did conclude, however, that the failure of Mylar's attorney to file a brief with the direct appeal amounted to ineffective assistance of counsel and recommended that habeas relief be granted. The district court adopted the majority of the magistrate's report but rejected the determination that Mylar had received ineffective assistance. The lower court concluded that any harm caused by the failure to file a brief had been eliminated by the state court's examination of the record for "apparent" errors. Upon this review, we reach only the claim of ineffective assistance of counsel.

To establish ineffective assistance, a defendant must show that his attorney failed to provide "reasonably effective representation." United States v. Phillips, 664 F.2d 971, 1040 (5th Cir. 1981). Reasonably effective representation does not entitle a defendant to an error free performance.

Page 1301

Baty v. Balkcom, 661 F.2d 391, 394 (5th Cir. 1981). It does, however, require that counsel's conduct fall within the range of competency generally demanded of attorneys in criminal cases. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970); accord, Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. 1981).

Few cases have elucidated the "range of competency" required of counsel on appeal. Courts have generally held that the inexcusable failure of counsel to perfect an appeal constitutes ineffective assistance. E.g., Chapman v. United States, 469 F.2d 634 (5th Cir. 1972) (after filing notice of appeal, counsel intentionally abandoned appeal without notifying defendant); Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966) (attorney intentionally failed to file appeal without notifying defendant). On the other hand, an attorney's failure to brief meritless points of law will normally not be deemed ineffective assistance. Mendiola v. Estelle, 635 F.2d 487 (5th Cir. 1981); accord, Gustave v. United States, 627 F.2d 901 (9th Cir. 1980). The instant case, however, falls between the two extremes. Mylar received an appeal, but was denied the benefit of any adversarial brief, including argument in favor of his position. Although a troublesome issue, we glean sufficient guidance from prior decisions to conclude that the failure in this instance to file a brief with the appeal constituted ineffective assistance of counsel.

In Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), the Supreme Court made clear that appellate counsel must function as an "active advocate on behalf of his clients." Accord, Entsminger v. Iowa, 386 U.S. 748, 751, 87 S.Ct. 1402, 1403, 18 L.Ed.2d 501 (1967). As an "active advocate", appellate counsel is duty bound to affirmatively promote his client's position before the court. Such a duty not only requires counsel to inform the court of errors committed at trial, but additionally mandates that counsel provide legal citations and reasoning to support any claim for relief. Unquestionably a brief containing legal authority and analysis assists an appellate court in providing a more thorough deliberation of an appellant's case. See...