The magistrate’s report and recommendation of December 24, 1987, recommended that the petition for writ of habeas corpus be granted with respect to the petitioner’s seventh claim. That claim is that the petitioner was denied the effective assistance of counsel on direct appeal, in violation of Anders v. California,
The respondent has objected on three grounds: (1) error in interpreting Robinson v. Black,
As for issue (1), I think the magistrate has interpreted Robinson v. Black correctly. Whether the circuit court’s panel in the Robinson case was correct, I offer no view, but it appears to me that the court’s resolution necessarily concludes that actual prejudice — a reasonable probability that the result of the proceeding would have been different but for counsel’s actions — is not required where appellate counsel on a petitiоn to withdraw under Anders files a brief affirmatively arguing against the client’s cause. The case at bar is such a case.
As to issue (2), I see nothing in the respondent’s brief or in the file that points out anything to indicate that the Nebraska Supreme Court made a finding that the petitioner’s direct appeals were wholly frivolous. The court’s ruling was dated July 8, 1981, and stated only:
“Motion of court-appointed counsel for leave to withdraw appearance, sustained; judgment affirmed; see Rule 20A-8.” (Exhibit 9)
Rule 20A-8 of the rules of the Supreme Court of Nebraska provided:
“Upon consideration of a motion under Rule le(l) (setting out the prоcedure for appointed counsel to seek leave to withdraw on grounds that the appeal ‘is wholly frivolous,’ but saying nothing about the effect of the court's ruling on such a request) and a review of the record if it shall appear to the court that the decision of the trial court should be affirmed or reversed, the court may take such action on its own motion.”
While the filing of a motion to withdraw may carry the necessary implications that counsel thinks the appeal is frivolous, neither the filing nor the rule implies a finding by the court of frivolousness if the trial court’s action is affirmed. The Supreme Court of the United States sрecified in the Anders opinion that the procedure must be that the court — not counsel — decides whether the case is wholly frivolous. “If it so finds it may grant counsel’s request to withdraw and dismiss the appeal ... or proceed to a decision on the merits.” Anders v. California,
Twice the petitioner has gone before the Supreme Court of Nebraska on post-trial proceedings. The first is reported at
The second post-conviction appeal is reported at
“On direct appeal the records in all four cases were examined by this court and found to be free from prejudicial error. Motions to withdraw filed by the defendant’s counsel were sustained and the judgments affirmed on July 8,1981.”
The only mention of a “frivolous issue” appears at
In summary, neither the Supreme Court of Nebraska’s ruling of July 8, 1981, the rule it cited, nor the post-conviction opinions shows any signs of that court’s having held the petitioner’s direct appeal or appeals to have been wholly frivolous. The magistrate made no error.
As to issue (3), the court-appointed counsel’s motions to withdraw and the submitting of a non-advocatory brief were not harmless beyond a reasonable doubt. The magistrate’s report and recommendation’s footnote 4 adequately illustrates this.
I shall adopt that recommendation and report.
ORDER ON REPORT AND RECOMMENDATION OF THE MAGISTRATE
In accordance with the report and recommendation of the magistrate, filing 8, and my memorandum on report and recommendation of the magistrate of today,
IT IS ORDERED: that the petition for writ of habeas corpus is granted with respеct to the petitioner’s seventh claim, concerning the denial of the effective assistanee of counsel on direct appeal, and the respondent is ordered to release the petitioner unless, within a reasonable time after judgment becomes final and the petitioner’s counsel files with the Supreme Court of Nebraska the appropriate motions, the Supreme Court of Nebraska grants petitioner leave to reinstate his direct appeal and appoints counsel for him to present to that court all arguable issues.
In the United States District Court
for the District of Nebraska
CV87-L-279
Joel R. Evans, Petitioner, v. Gary Grammer, Respondent.
December 24, 1987
REPORT AND RECOMMENDATION
Petitioner, an inmate at the Nebraska State Penitentiary, has submitted a petition for habeas corpus pursuant to 28 U.S.C. § 2254. He is currently serving a term of imprisonment of not less than forty-five nor more than eighty years following his convictions in Douglas County District Court stemming from four separate robbery incidents. These robberies occurred at Jack & Mary’s Restaurant, the Village Inn Pancake House, Gorat’s Steak House, and Oseo Drug. During 1980 a consolidated trial was held on the 21st and 22nd of July for the robberies at the Village Inn and Gorat’s Steak House, and a separate trial concerning the robberies at Jack & Mary’s Restaurant was held on the 8th and 9th of September. On September 30,1980, the petitioner entered a plea of guilty to the charges stemming from the Oseo Drug robbery.
1. Petitioner’s rights under the Due Process Clause of the Fourteenth Amendment were violated when the trial court admitted the in-court and out-of-court identifications of the petitioner by the various witnesses, given the impermissibly and unnecessarily suggestive pretrial identification procedures.
2. Petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel, in violation of thе Sixth Amendment, in failing to raise a proper due process challenge to the identification testimony elicited at the trials.
3. Petitioner’s trial counsel rendered constitutionally ineffective assistance of counsel, in violation of the Sixth Amendment, in refusing to call petitioner’s brother-in-law as an alibi witness in the trial concerning the robberies at Jack & Mary’s Restaurant.
4. Petitioner’s rights under the Fifth Amendment were violated when, during the trial of the Gorat’s Steak House robbery, the prosecutor committed misconduct of constitutional proportions by purportedly commenting on a failure to testify on the part of the petitioner.
5. Petitioner’s right to a fair trial under the Sixth and Fourteenth Amendments was violated when the prosecutor— outside the presence of the judge, the petitioner, and his counsel — allegedly communicated with the jury inside the jury room, just prior to the returning of the verdicts in the trial of the Village Inn Pancake House and Gorat's Steak House robberies.
6. Petitioner’s rights under the Due Process Clause of the Fourteenth Amendment was violated because the presentence report prepared by the probation office and used by the trial court in sentencing petitioner purportedly contained fаlse, inaccurate, and misleading information.
7. Petitioner was denied the effective assistance of counsel on direct appeal, in violation of Anders v. California,386 U.S. 738 ,87 S.Ct. 1396 ,18 L.Ed.2d 493 (1967), when counsel, in failing to raise the claims which petitioner now seeks to raise, was permitted to withdraw after filing a nonadvocatory brief.
I
Before this court may consider the petitioner’s claims on the merits, 28 U.S.C. § 2254(b) requires that each claim must be found “exhausted.” Exhaustion has generally been interpreted as meaning that the precise claims sought to be raised in federal court must have first been presented to the highest court of the statе in which the petitioner was convicted. Thomas v. Wyrick,
The exhaustion requirement, however, is not jurisdictional in nature; it is instead a matter of comity, reflecting a concern for the proper relationship between the federal and state governments. Walker v. Lockhart,
II
The petitioner’s primary basis for relief concerns his claim that he was denied the effective assistance of counsel on the direct appeal of his convictions in state court. Because I find this claim to have merit, it would be inappropriate for me to address the merits of petitioner’s six other claims. See, e.g., Robinson v. Wyrick,
Petitioner, relying upon Robinson v. Black, 812 F.2d-1084 (8th Cir.1987), petition for cert, filed, alleges that he was denied the effective assistance of counsel on direct appeal
In Anders the Supreme Court addressed the situation facing appointed appellate counsel in a criminal case, when counsel is of the opinion that the dеfendant’s arguments for reversal of the conviction are frivolous. The Court said:
The constitutional requirement of substantial equality and fair process can*1356 only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposes to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to, his client and to the court. His role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A Copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court— not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.
This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references no only to the record, but also to the legal authorities as furnished it by counsel. The no-merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate.
In response, the Nebraska Supreme Court promulgated its rules to permit appointed appellate counsel to withdraw. Although the rule has been amended from time to time, it remains much the same as when first adopted. At the time of petitioner’s appeal, the rule provided:
Counsel appointed in the District Court to represent a defendant in a criminal case, other than post conviction, shall, upon request by the defendant after judgment, file a notice of appeal and continue to represent the defendant unless permitted to withdraw by this court. Any motion for permission to withdraw shall state the reason for the request. A request to withdraw on grounds that the appeal is wholly frivolous shall be accompanied by a brief referring to anything in the record that might arguably support the appeal. The brief may be typewritten and nine copies shall be filed with proof of service upon opposing counsel. The Clerk shall furnish the defendant with a copy of counsel’s brief, and advise the defendant that he has 30 days in which to raise any points that he chooses, and that this may be done in typewritten or handprinted form. Upon the expiration of the time for this filing, the motion will be considered submitted.
Nebraska Supreme Court Rule le(l) (1980).
In practice, the rule resulted in the Nebraska Supreme Court being presented with motions to withdraw accompanied by briefs written by appointed defense counsel, which argued the state’s case to demonstrate how their clients’ positions were “without merit.” The Nebraska Supreme Court has described its internal approach to such motions and briefs as follows:
The disposition of a direct appeal pursuant to rule 3B [the present form of the rule quoted above] is a disposition on the merits. See rule 3B(4). See, also, Anders v. California,386 U.S. 738 [87 S.Ct. 1396 ,18 L.Ed.2d 493 ] (1967). In granting relief pursuant to rule 3B, this court examines the entire record, not only to resolve those matters which are specifically called to the court’s attention by court-appointed counsel but also to determine whether any possible errors exist.*1357 Therefore, any matter which can be determined from the record on direct appеal is considered by the Supreme Court when granting relief pursuant to rule 3B and is not available for further relief pursuant to the Nebraska Post Conviction Action.
State v. Sanders,
The Court of Appeals in Robinson v. Black, supra, addressed whether the practice adequately protected the right of the defendant to effective assistance of counsel, concluding that it did not. Relying on the quoted language above from Anders, the Court of Appeals found that “effective assistance” requires that counsel assert the defendant’s arguments on appeal in an advocatory manner, even if presenting those arguments in an Anders “no-merit” brief.
Anders sets forth the conditions under which an indigent defendant’s appointed counsel can withdraw on appeal. In order to protect the defendant’s rights, counsel must first brief “anything in the record that might arguably support an appeal.” Id. [386 U.S.] at 744 [87 S.Ct. at 1400 ]. This mandatory briefing must be done as an advocate: “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposes to that of amicus curiae.” Id. It is for the court to determine whether the appeal is frivolous, not the defendant’s counsel. Id.
This result is the fairest resolution of the ethical dilemma facing appellate counsel who, on the one hand, is obligated as an officer of the court to be completely honest with the court, and, on the other hand, is bound to zealously advocate his or her client’s claims. When the two are inconsistent, the former must yield, at least slightly. While it would have been helpful if the Anders Court had explained its “without conflict” language, the decision does nevertheless relegate an appointed attorney’s “officer-of-the-court” duties to secondary status in order to preserve the integrity of the adversary system in the situation involving an indigent defendant whose interests would otherwise not be heard. Justice is satisfied only if the process by which the result is reached is just and fаir both in fact and in appearance. Offutt v. United States,
In this case, petitioner’s appellate counsel, in his brief in support of his motion to withdraw, wrote “[f]or nearly seven pages openly supporting] the trial court’s various rulings with case citations and counsel’s own opinions.”
As in Robinson, the claims which petitioner’s appellate counsel failed to present on direct appeal “are far from frivolous.”
In Evitts v. Lucey,
This adversarial process does not end after trial, as respondent appears to argue. See, e.g., Evitts v. Lucey, supra. For that reason, respondent’s attempt to limit this presumption of prejudice to situations in which trial counsel has failed to satisfy the requirements of the Sixth Amendment is wide of the mark.
Respondent argues that in cases in which prejudice has been presumed, such as Cuyler v. Sullivan,
This is not a case in which appellate counsel merely omitted one plausible claim from the many others which were raised in an otherwise acceptable brief.
IT THEREFORE IS HEREBY RECOMMENDED, pursuant to 28 U.S.C. § 636(b)(1)(B), that the petition for writ of habeas corpus be granted with respect to petitioner’s seventh claim, concerning the denial of the effective assistance of counsel on direct appeal, and that the respondent be ordered to release petitioner unless, within a reasonable time after judgment becomes final and petitioner’s counsel files with the Nebraska Supreme Court the appropriate motions, the Nebraska Supreme Court grants petitioner leave to reinstate his direct appeal and appoints him counsel to brief all issues.
The parties are hereby notified that unless objection is made within eleven days after being served with a copy of this recommendation, they may be held to have waived any right they may have to appeal the court’s order adopting this recommendation.
(s) David L. Piester United States Magistrate
Notes
. The record indicates that in exchange for the petitioner’s guilty plea, the prosecutor agreed to dismiss the charges of robbery and use of a firearm in the commission of a felony stemming from robberies at (i) LaCasa Pizzeria, (ii) the Surfco Gas Station, (iii) Kentucky Fried Chicken, (iv) the 400 Oil Company, and (v) Jim’s 400 Service Station. (BOE, Doc. 107, No. 407, 7:25-9:24).
. Petitioner also apparently seeks to raise a similar claim based upon the alleged ineffective assistance of counsel during his first state post-conviction action. It is clear that such a claim can provide him with no basis for relief. A federal court may grant a writ of habeas corpus for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws ... of the United States.” 28 U.S.C. § 2254(a). As the United States Supreme Court has recently held, a convicted inmate has no right under the Sixth Amendment to a court-appointed attorney for pursuing collateral attacks of his conviction. Pennsylvania v. Finley, 481 U.S.-,---,
. In addition, although not raised in his petition, in his brief the petitioner appears to challenge the Nebraska Supreme Court’s denial of his request to proceed pro se after his convictions and sentences were summarily affirmed and his court-appointed attorney was permitted to withdraw. Petitioner contends that under Chamberlain v. Ericksen,
. This is true primarily because in analyzing such claims courts must look at the "totality of the circumstances” to determine whether, despite the presence of "unnecessarily and impermissibly suggestive” pretrial identification procedures, the identification testimony is sufficiently reliable so as nоt to have created "a very substantial likelihood of irreparable misidentification.” Neil v. Biggers,
"reliability is the linchpin in determining the admissibility of identification testimony---The factors to be considered ... include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and*1358 the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself."
For example, as the Eighth Circuit has observed, a showup, which occurs “when a single person is presented as a suspect to a viewing witness,” United States v. Sanders,
. As respondent acknowledges in his brief, the court in Robinson did not discuss whether prejudice in the Strickland sense must be shown. (Respondent’s Brief at 15). The respondent nonetheless contends that, by implication at least, the court did require such a showing of prejudice. Any such contention is wide of the mark. In initially rejecting Darwin Robinson’s claim concerning the ineffective assistance of appellate counsel, the undersigned applied the Strickland prejudice test and found the claim to be without merit. This was done after thoroughly reviewing the underlying substantive claims — involving challenges to certain pretrial identification procedures, the introduction of certain physical evidence, and the admission of the testimony of an inmate/government informant — and ultimately finding them to be without merit. Robinson v. Black, CV84-L-577 (report & recommendation dated February 7, 1986), slip oр. at 4, 5-11. Judge Urbom adopted the report and recommendation. The Eighth Circuit, in reversing and remanding, did not find fault with this rejection on the merits of Robinson’s underlying substantive claims. In footnote 8 the Eighth Circuit merely noted that “a strong argument can be made that the testimony of ... the paid government informant violated Robinson’s sixth amendment right to have counsel present during interrogation.”
. See, e.g., Reese v. Frey,
. See, e.g., Hollis v. United States,
.See, e.g., Cannon v. Berry,