Sanders v. Clarke, 87-2197

• Decision Date: 12 September 1988
• Docket Number: No. 87-2197,87-2197
• Citation: 856 F.2d 1134
• Parties: Duane W. SANDERS, Appellee, v. Harold W. CLARKE, Warden, Nebraska State Prison, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1134

856 F.2d 1134

57 USLW 2201

Duane W. SANDERS, Appellee, v. Harold W. CLARKE, Warden, Nebraska State Prison, Appellant.

No. 87-2197.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 9, 1988.

Decided Sept. 12, 1988.

Lynne R. Fritz, Asst. Atty. Gen., Lincoln, Neb., for appellant.

Thomas V. Van Robays, Omaha, Neb., for appellee.

Before McMILLIAN, ARNOLD, and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

In this habeas appeal we consider the intersection between the procedure counsel must follow to withdraw from a frivolous appeal under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the standards for effective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The District Court held the no-merit brief filed by defendant's counsel did not comply with Anders, and then, believing no showing of prejudice was necessary to prove ineffective assistance of counsel, conditionally granted a writ of habeas corpus on that ground. The State appeals both these rulings. We agree with the District Court's assessment of the Anders brief filed, but because we now hold that a defendant must prove he was prejudiced by his lawyer's nonconforming Anders brief to establish ineffective assistance of counsel, we reverse.

I.

On July 25, 1980 Larry Robinson was cleaning up the Nifty Bar after closing. He was alone. At about 1:15 a.m. a man knocked on the glass portal of the front door of the bar and said he needed change for a ten-dollar bill. Robinson later recalled that he had seen the man earlier that evening while he was tending bar. At first Robinson refused to help the man, explaining that the bar was closed. But when the man insisted, claiming that it was an emergency, Robinson relented and got the change from the cash register. He had cracked open the door to exchange money when the man wedged his foot in and forced the door open, brandishing a revolver. The intruder made Robinson lie on the floor. Then he looted the cash register and took the bartender's wallet, watch, and ring. He started to leave, but then stopped and said, "On second thought, you're not going anywhere." He shot Robinson at close range in the back of the head. Fortunately, Robinson survived. There was no direct injury to the brain, though he continues to suffer from neck pain and numbness in his hands.

The appellee, Duane Sanders, was arrested on September 30th. After he was informed of his rights and questioned about the incident at the Nifty Bar, Sanders confessed to having robbed the bar and shot the bartender. When asked to repeat his statement into a tape recorder, Sanders refused and asked to speak to a lawyer. Questioning ceased while police called the public defender's office. However, because the call was made after hours, no lawyer was available to come to the station. The public defender who answered the phone instructed the police to tell the defendant to remain silent. Apparently Sanders took this advice; no taped statement was made.

That same day police called three people down to view Sanders in a line-up: Barbara O'Kane, Thomas Hegarty, and Larry Robinson. O'Kane was a barmaid at the Nifty Bar and had been working the night of the robbery. Earlier she had told police about a man who came into the bar the night of the shooting and asked for change for a quarter. The man had peered into the cash drawer, standing on his toes, when she opened it to make change. She had exchanged glances with Robinson and bar patron Thomas Hegarty over the man's behavior. Hegarty had remarked it was odd for someone to get change and then not use the phone. O'Kane, Hegarty, and Robinson had looked at hundreds of photographs in the hopes of identifying the man in the bar and/or the robber. None had made an identification prior to the line-up.

Robinson viewed the line-up first. Afterwards he told police he was not ready to make a positive identification. O'Kane then viewed the same three men, and picked Duane Sanders as the man she had seen in the bar. Hegarty also identified Sanders. After all three witnesses had viewed the line-up once, they were placed in a room together and allowed to talk among themselves. O'Kane and Hegarty told Robinson they had picked one of the men out of the line-up. A policeman told the group that the man O'Kane and Hegarty had chosen had confessed to the crime. On October 8th, at a preliminary hearing, Robinson identified Sanders as the man who shot him and robbed the bar. He explained his previous failure to identify Sanders as due to a "psychological barrier" against admitting he had seen his assailant.

Sanders was tried to a jury and found guilty of attempted second-degree murder, robbery, and use of a firearm in the commission of a felony. On direct appeal to the Nebraska Supreme Court, Sanders' appointed lawyer filed an Anders brief seeking to withdraw from the appeal on the ground that it was frivolous. The Court granted the attorney's motion and affirmed the conviction. 209 Neb. xx-xxi (1981). After exhausting his state remedies, Sanders filed a habeas petition which was conditionally granted by the District Court. Under the District Court's order, Sanders would have to be released unless the State allows him another, belated direct appeal, with counsel who would, at least, file a brief complying with Anders. This appeal by the State followed.

We are presented with two questions: (1) Was the no-merit brief filed by Sanders' counsel adequate under Anders v. California, and (2) if it was not, must Sanders demonstrate that he was prejudiced by his attorney's deficient brief?

II.

The State first contests the District Court's determination that Anders was not complied with. ¹ Admitting that counsel's brief does not argue for reversal of Sanders' conviction, the State contends that arguments for reversal are not required under Anders, citing Nickols v. Gagnon, 454 F.2d 467 (7th Cir.1971), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336 (1972), for support. Nickols declared that the no-merit brief does not have to argue the defendant's case, but need only "refer [ ] to anything in the record that might arguably support the appeal." Id. at 471-72 n. 8, quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400 (emphasis added). The State acknowledges that this interpretation of Anders clashes with an Eighth Circuit case, Robinson v. Black, 812 F.2d 1084 (8th Cir.1987) petition for cert. filed, 56 U.S.L. Week 3134 (U.S. Aug. 3, 1987) (No. 87-211), but asks this panel of the Court to modify that decision. ²

In Anders v. California, the Supreme Court described the extent of the duty of court-appointed counsel to prosecute a first appeal from a criminal conviction after he has conscientiously determined that the indigent's appeal has no merit. 386 U.S. at 739, 87 S.Ct. at 1397-1398. The Court concluded that if counsel found the case to be wholly frivolous, he should advise the court and ask permission to withdraw. Id. at 744, 87 S.Ct. at 1400. However, the Court also required counsel to file a brief along with his request "referring to anything in the record that might arguably support the appeal." Id. Throughout this process, the lawyer was directed to "act in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." Id. In Robinson v. Black, this Court clarified counsel's duties, directing him "to brief and argue [defendant's] case to the best of [his] ability, showing the most favorable side of the defendant's arguments." Id. at 1086.

We agree with the District Court that the brief filed by Sanders's counsel does not comply with Anders. The eight-page memorandum reads like a summary of the proceedings, with emphasis given to reasons for holding them correct. ³ No arguments are made for reversal, no cases cited which might support Sanders's appeal. Indeed, the narrative is so seamless it is difficult to discern what the points of error are. In short, the memorandum reads like the amicus brief forbidden in Anders. In any case, because it fails to offer arguments in support of defendant's appeal, the brief is inadequate under Robinson. ⁴

III.

Next the State argues that the District Court should have required Sanders to prove he was prejudiced by his counsel's deficient Anders brief. Because we now explicitly hold that the standard for ineffective assistance of counsel set forth in Strickland applies to this situation, we reverse.

The indigent criminal appellant has the right to an attorney in his first appeal as of right. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). This right necessarily comprehends the right to the effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Though the Supreme Court declined to lay out the appropriate standards for judging claims of ineffective assistance of appellate counsel in Evitts, id. at 392, 105 S.Ct. at 833-834, this Court has applied the two-part Strickland standard. Bell v. Lockhart, 795 F.2d 655 (8th Cir.1986); Beavers v. Lockhart, 755 F.2d 657 (8th Cir.1985). Thus, to sustain a claim of ineffective assistance of appellate counsel, the defendant must show his counsel's performance was unreasonable under prevailing professional norms, and that but for the deficient performance there is a reasonable probability the outcome would have been different.

In his habeas petition, Sanders contends that he was denied the effective assistance of counsel when his lawyer filed a non-conforming Anders brief. Thus, unless this is a situation where prejudice is presumed, the Strickland standard applies, and Sanders must show he was prejudiced--that is, Sanders must show a reasonable probability that the outcome of his appeal would have been different if his counsel's brief had satisfied Anders....