Go to:	Part II B	Case Menu	Briefs Menu

ARGUMENT
I. The present case is one of challenged effectiveness of trial counsel, not denial of appellate counsel.

Thus, in this situation, the Strickland prejudice inquiry and the "duty" question of whether trial counsel was obligated to file the notice of appeal come down to the same question. The State of California does not deny that trial counsel has a duty to appeal if there are arguably meritorious grounds. Indeed, the state has gone so far as to affirmatively impose that duty itself by statute. See Cal. Penal Code §1240.1(b). The state also requires trial counsel to appeal when defendant requests an appeal. Ibid. The only area of dispute involves appeals which are neither requested nor meritorious. There is no denial of a right to counsel on such an appeal if there is no right to such an appeal at all.

By holding that counsel must file groundless appeals in the absence of an express waiver, rather than only upon express request, the Ninth Circuit has effectively added a new requirement to California's appellate process. In this regard, it is helpful to remember what this Court has said about the latitude the Constitution leaves to the states in this area:

"Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases. A state may decide whether to have direct appeals in such cases, and if so under what circumstances.

. . . . .

"So long as the rights under the United States Constitution may be pursued, it is for a State and not for this Court to define the mode by which they may be vindicated." Carter v. Illinois, 329 U. S. 173, 175-176 (1946).

Evitts v. Lucey, 469 U. S. 387, 393 (1985) reaffirmed that states may provide appeals or not, as they choose, but also held that if the state does provide appeals, the procedure must comport with due process, ibid., which includes effective assistance of counsel. Id., at 396.

California's rule that a defendant who wishes to appeal must file a timely notice is, of course, a perfectly legitimate rule serving important state interests. Since the mid-1970s, this Court's decisions on procedural default in habeas cases have recognized the importance of federal court respect for state procedural rules. The history is traced in Coleman v. Thompson, 501 U. S. 722, 745-749 (1991).

Coleman involved the same type of default as the present case--a failure to file the notice of appeal, thus defaulting the entire appeal rather than a particular issue. Id., at 749. Coleman considered and rejected the contention that this made a difference in the standard to be applied. Id., at 749-750. It is an "irrational distinction" to separate one kind of default from another. The same rule applies to both.

The procedural default rule and the ineffective assistance of counsel rule are closely related. Functionally, the right to effective assistance serves as a safeguard protecting defendants from miscarriages of justice as a result of defaulted claims. Murray v. Carrier, 477 U. S. 478, 496 (1986). The two rules are also related in their common "prejudice" element. The prejudice element of the ineffective assistance test is the same as the "materiality" element of the Brady v. Maryland, 373 U. S. 83 (1963) line of cases. See Strickland v. Washington, 466 U. S. 668, 687, 694 (1984). The prejudice element of the procedural default test is also the same as the materiality element of Brady. See Strickler v. Greene, 527 U. S. __ (No. 98-5864, June 17, 1999) (slip op., at 33) (lack of "reasonable probability" negates both materiality and prejudice). Thus, the two prejudice elements are equal to each other. See Schlup v. Delo, 513 U. S. 298, 332-333 (1995) (O'Connor, J., concurring) (implicitly equating Strickland prejudice test with default prejudice test).

Because the two tests are so similar, it makes little difference whether an issue defaulted by counsel is analyzed as an independent claim of ineffective assistance or under the rule for procedural default, with ineffective assistance as the "cause." See Smith v. Murray, 477 U. S. 527, 535-536 (1986) (using Strickland standard of competence to reject claim of "cause").

It would make little difference, that is, unless the federal habeas court takes the double step of (1) imposing a duty on trial counsel where none existed before, and (2) dispensing with the Strickland prejudice requirement. In that event, the effect would be to subvert the state's decision regarding "under what circumstances" it will hear appeals, a decision which this Court clearly stated in Carter, supra, at 5, belongs to the states and not to the federal judiciary.

The conflict between the holding in the present case and the policy of respecting state procedure is easily avoided by recognizing the fallacy of Lozada's holding that this is a case of "denial of . . . counsel altogether." There is no right to counsel in a proceeding which never happens. The right to counsel on appeal depends entirely on the state's decision to allow the appeal. See Evitts, supra, 469 U. S., at 393-394.

The State of California has decided not to impose on counsel the duty to file a notice of appeal when the appeal is neither requested nor meritorious. The question is whether that decision comports with the demands of the Due Process Clause. Cf. id., at 393. The focus is on the act or omission of trial counsel in initiating the appeal or not doing so. Does that omission amount to ineffective assistance of counsel? This is one omission in the course of representation in a proceeding in which the state did provide counsel; it is not a denial of counsel altogether.

II. The standard test of Strickland v. Washington should be applied.

This test has effectively balanced the competing interests involved in habeas review. In establishing its test, Strickland considered both the "finality concerns" of the state and the need to ensure a fair, reliable proceeding. 466 U. S., at 694. Again, the procedural default cases are strongly analogous. "On the one hand, there is Congress' expressed interest in providing a federal forum for the vindication of the constitutional rights of state prisoners . . . . ¶ On the other hand, there is the state's interest in the integrity of its rules and proceedings and the finality of its judgments . . . ." Reed v. Ross, 468 U. S. 1, 10 (1984). The Strickland test reaches the same balance by providing a forum for review when it is alleged a defendant's Sixth Amendment rights have been violated. However, it does not make access so easy that the federal court becomes a place for a second trial. Strickland explains that "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, supra, 466 U. S., at 691. This standard protects the state's interest in the finality of its judgments by insuring that only errors that are "so serious as to deprive the defendant of a fair trial" are overturned on habeas review. Id., at 687. Strickland's prejudice element, like that of the procedural default test, also promotes comity and federalism by recognizing that "[f]ederal intrusion into state criminal trials frustrate both the state's sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Engle v. Isaac, 456 U. S. 107, 128 (1982).

The Ninth Circuit, however, has interpreted Strickland, supra, along with Rodriquez v. United States, 395 U. S. 327 (1969) as requiring a presumption of prejudice "if it is established that counsel's failure to file a notice of appeal was without the petitioner's consent." Lozada v. Deeds, 964 F. 2d 956, 958 (CA9 1992); see also United States v. Stearns, 68 F. 3d 328, 330 (CA9 1995) (extending the Lozada reasoning to appeals after guilty pleas). This presumption effectively places a Sixth Amendment duty on trial counsel to file a notice of appeal without regard to counsel's evaluation of the merits of an appeal. Strickland did explain that "[i]n certain Sixth Amendment contexts, prejudice is presumed." However, this is not one of the situations that Strickland identified as deserving of a presumption of prejudice. See post, at 15-17.

A. Lozada/Rodriquez.

This Court's Lozada opinion never resolved whether a presumption of prejudice was the appropriate standard. The Court simply acknowledged that the issue was debatable,⁽³⁾ and therefore, met the standard for issuance of a certificate of probable cause. Any suggestion taken from this Court's Lozada opinion that a presumption of prejudice is necessarily the correct standard is in error, as "new rules of constitutional law are not established in dicta . . . ." Henderson v. Morgan, 426 U. S. 637, 651 (1976) (White, J., concurring).

Concluding that an issue is debatable is very different from deciding the point. For example, in Caspari v. Bohlen, 510 U. S. 383 (1994), this Court was asked to decide "whether the Double Jeopardy Clause prohibits a state from twice subjecting a defendant to a noncapital sentence enhancement proceeding." Id., at 386 (emphasis added). The Court, instead, resolved the case on Teague grounds. Id., at 397. The question presented in Caspari was not resolved until four years later, in Monge v. California, 524 U. S. 721, 141 L. Ed. 2d 615, 628, 118 S. Ct. 2246, 2253 (1998).

The Lozada Court cited Rodriquez v. United States, 395 U. S. 327, 330 (1969) as additional authority for the debate among the circuits. See Lozada, supra, 498 U. S., at 432. This citation simply recognized the circuits' reliance on Rodriquez in forming the presumption of prejudice. It did not, however, conclude that Rodriquez should alter the established Strickland prejudice analysis. On remand, the Ninth Circuit's opinion in Lozada v. Deeds attempted to reconcile Rodriquez and Strickland and concluded that Lozada's circumstances amounted to "the 'actual or constructive denial of the assistance of counsel altogether' referred to in Strickland." Lozada, supra, 964 F. 2d, at 958. This conclusion was then extended to appeals from guilty pleas in Stearns, without further analysis of the appropriateness of the presumption. Stearns, supra, 68 F. 3d, at 330. The Ninth Circuit's conclusion, as well as those from other circuits which have relied on Rodriquez, fails to recognize that Rodriquez was a federal rules case and not a constitutional case. This results in a distortion of Strickland's limited presumed-prejudice category in order to accommodate Rodriquez.

In Rodriquez, petitioner's counsel had failed to file a notice of appeal from his federal conviction. Rodriquez, supra, 395 U. S., at 328. Petitioner then sought post-conviction relief pursuant to 28 U. S. C. §2255 from the Federal District Court, claiming that "his retained counsel had fraudulently deprived him of his right to appeal." Rodriquez, 395 U. S., at 328-329. The Ninth Circuit had in place a procedural rule that required §2255 applicants "in petitioner's position to disclose what errors they would raise on appeal and to demonstrate that denial of an appeal had caused prejudice." Id., at 329. The Court noted, "Applicants for relief under §2255 must, if indigent, prepare their petitions without the assistance of counsel." Id., at 330.⁽⁴⁾ A showing of prejudice was too high a hurdle for the unrepresented petitioner, and the Court concluded that no such showing would be required to reinstate the appeal.

The Rodriquez holding, however, is not a constitutional mandate. It is simply a federal procedural rule. The Constitution is not invoked anywhere in the decision as requiring this mode of proceeding. This Court has "more latitude in setting standards . . . in federal courts under [its] supervisory power than [it has] in interpreting the provisions of the Fourteenth Amendment . . . ." Mu'Min v. Virginia, 500 U. S. 415, 424 (1991). A decision establishing a procedure for federal courts, without indicating that the procedure is constitutionally required, does not by itself impose that same procedure on state courts. See also Victor v. Nebraska, 511 U. S. 1, 11 (1994).

The Rodriquez holding has the value of efficiency in a unitary system where federalism is not a concern. A lawyer is needed to evaluate the case to determine if there are any arguably meritorious issues. See Rodriquez, supra, 395 U. S., at 330. The alternatives then are (1) appoint counsel for the § 2255 proceeding to identify issues and, if substantial issues are found, grant relief, reinstate the appeal, and appoint counsel for the appeal; or (2) simply reinstate the appeal and appoint appellate counsel. Where the appointment funds all come out of the same pot, number 2 has the virtues of simplicity and brevity.

When proceedings cross the federal-state boundary, though, things get more complicated. A grant of relief in this case would require the State of California to appoint counsel and hear and decide the appeal, when its legitimate rule of procedure bars that appeal. This burden can and should be imposed on the state if, and only if, there is a real probability of injustice.

The state has already taken its own steps to safeguard against injustice. It has already shouldered the expense of providing counsel to determine whether Ortega has arguably meritorious issues to appeal. That job has already been done by trial counsel, Ms. Kops.

Ms. Kops' conclusion that there is nothing to appeal is hardly surprising in a guilty plea case. The plea waives most issues. See, e.g., United States v. Broce, 488 U. S. 563, 573-574 (1989) (double jeopardy claim waived). The whole purpose of the Boykin v. Alabama, 395 U. S. 238, 244 (1969) advisements is to limit attacks on pleas.

If the federal habeas court does not have confidence in the safeguards provided by the state court, then it can and should appoint counsel itself to identify the issues that would have justified an appeal. If there are no such issues, then the habeas petitioner's claim fails both prongs of Strickland; trial counsel did her job correctly, and her omission caused no harm to her client. In such a case, there is no justification for pushing the burden of yet another frivolous appeal on the already overloaded state appellate courts.

	Beginning of this file	Part II B	Case Menu

Footnote 3. This debate among the circuits as recognized by this Court also supports the conclusion that United States v. Stearns, supra, announced a new rule for purposes of Teague v. Lane, 489 U. S. 288 (1989). See post, Part III.

Footnote 4. 18 U. S. C. §3006A was amended the next year to expand appointments in collateral proceedings. See Pub. L. No. 91-447, §1, 84 Stat. 916, 919 (1970) (adding subd. (g), predecessor of present subd. (a)(2)(B)); H. Rep. No. 91-1546, 1970 U. S. Code Cong. & Admin. News 3982, 3992-3993.    
 
August 1999