Lead Opinion
delivered the opinion of the Court.
We are asked in this case to decide whether Douglas v. California,
I
The case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford. In both eases respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and because of his indi-gency was represented at trial by court-appointed counsel. He was convicted and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed.
Following affirmance of his Mecklenburg County conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court. His court-appointed counsel approached the Mecklen-burg County Superiоr Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition. Respondent sought collateral relief in both the state and federal courts, first raising his right-to-counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February 1971. Relief was denied at that time, and respondent’s appeal to the Court
Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court. On this appeal, however, respondent was not denied counsel but rather was represented by the public defender who had been appointed for the trial and respondent’s first appeal. The North Carolina Supreme Court denied certiorari.
The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court. Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated:
“As long as the state provides such procedures and allows other convicted felons to seek access to the*605 higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court.”4
This principle was held equally applicable to petitions for certiorari to this Court. For, said the Court of Appeals, “[t]he same concepts of fairness and equality, which require counsel in a first appeal of right, requirе counsel in other and subsequent discretionary appeals.”
We granted certiorari,
II
This Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal. In Griffin v. Illinois,
. . Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court.” Id., at 22.
The Court in Griffin held that this discrimination violated the Fourteenth Amendment.
Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants. McKane v. Durston,
The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigеnts while leaving open avenues of appeal for more affluent persons. In Douglas v. California,
Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the California District Court of Appeal. No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them. Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent. The California appellate court examined the trial record on its own initiative, following the then-existing rule in California, and concluded that “ ’no good whatever could be
This Court held unconstitutional California’s requirement that counsel on appeal would 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. The Court noted that under this system an indigent’s case was initially reviewed on the merits without the benefit of any organization or argument by counsel. By contrast, persons of greater means were not faced with the preliminary “ex parte examination of the record,” id., at 356, but had their arguments presented to the cоurt in fully briefed form. The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say:
“We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction ... or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion. But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, prоvide for differences so long as the result does not amount to a denial of due process or an 'invidious discrimination.’ Williamson v. Lee Optical Co.,348 U. S. 483 , 489; Griffin v. Illinois, supra, p. 18. Absolute equality is not required; lines can be and are drawn and we often sustain them.” Id., at 356-357.
The precise rationale for the Griffin and Douglas fines of cases has never been explicitly stated, some support
Ill
Recognition of the due process rationale in Douglas is found both in the Court’s opinion and in the dissenting opinion of Mr. Justice Harlan. The Court in Douglas stated that “[w]hen an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure.”
We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court. At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments. Gideon v. Wainwright, 372 U. S. 335 (1963). But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State's point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant's guilt. Under these circumstances “reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” Id., at 344.
By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court”
IV
Language invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal. The Court in Douglas, for example, stated:
“[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”372 U. S., at 357 . (Emphasis in original.)
The Court in Burns v. Ohio, stated the issue in the following terms:
“[0]nce the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.”360 U. S., at 257 .
Despite the tendency of all rights “to declare them
A. The North Carolina appellate system, as are the appellate systems of almost half the States,
The statute governing discretionary appeals to the Supreme Court is N. C. Gen. Stat. § 7A-31 (1969). This statute provides, in relevant part, that “[i]n any cause in which appeal has been taken to the Court of Appeals . . . the Supreme Court may in its discretiоn, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals.” The statute further provides that “[i]f the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals.” The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court but is regulated by statutory standards. Subsection (c) of this provision states:
“In causes subject to certification under subsection (a) of this section, certification may be made by thе Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the*614 Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.”
Appointment of counsel for indigents in North Carolina is governed by N. C. Gen. Stat. § 7A-450 et seq. (1969 and Supp. 1973). These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here,
B. The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in рreparing an appellate brief on his behalf for the state Court of Appeals. Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had “once been presented by a lawyer and passed upon by an appellate court.” Douglas v. California, 372 U. S.,
We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court. The critical issue in that court, as we perceive it, is not whether there has been “a correct adjudication of guilt” in every individual case, see Griffin v. Illinois,
y
Much of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court. North Carolina will have provided counsel for a convicted defendant’s only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari. This
There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court. The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress. Thus the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equаl opportunity to enjoy the right, is by its terms inapplicable. The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed.
The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority. It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction. Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court. See, e. g., Drumm v. California,
VI
We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review. Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time. North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court.
The judgment of the Court of Appeals’ holding to the contrary is
Reversed.
Notes
State v. Moffitt, 9 N. C. App. 694,
State v. Moffitt,
Id., at 655. The court then decided to remand the case to the District Court to “appraise the substantiality of the federal claim.” The court noted that it had no opportunity to examine the papers filed in the State Supreme Court and said that “[i]n the circumstances of this case . . . , where the only remedy available to the District Court would be the prisoner’s release on a writ of habeas corpus,” it was appropriate for the District Court to determine whether respondent’s claim was “patently frivolous.” Ibid.
See United States ex rel. Pennington v. Pate,
See
The Court of Appeals in this case, for exаmple, examined both possible rationales, stating:
“If the holding [in Douglas] be grounded on the equal protection clause, inequality in the circumstances of these cases is as obvious as it was in the circumstances of Douglas. If the holding in Douglas were grounded on the due process clause, and Mr. Justice Harlan in dissent thought the discourse should have been in those terms, due process encompasses elements of equality. There simply cannot be due process of the law to a litigant deprived of all professional assistance when other litigants, similarly situated, are able to obtain professional assistance and to be benefited by it. The same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.”483 F. 2d, at 655 .
Hudson County Water Co. v. McCarter,
See Brief for Respondent 9 n. 5.
For example, subsection (b) (6) of § 7A-451, effective at the time of respondent’s appeals, provides for counsel on “[djirect review of any judgment or decree, including review by the United States Supreme Court of final judgment <jr decrees rendered by the highest court of North Carolina in which decision may be had.” But this provision apparently has not been construed to allow counsel for permissive appellate procedures. See
Section 7A-451 of N. C. Gen. Stat. (Supp. 1973) provides:
“(a) An indigent person is entitled to services of counsel in the following actions and proceedings:
“(1) Any case in which imprisonment, or a fine of five hundred dollars ($500.00), or more, is likely to be adjudged;
“(2) A hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;
“(3) A post-conviction proceeding under Chapter 15 of the General Statutes;
“ (4) A hearing for revocation of probation, if confinement is likely to be adjudged as a result of the hearing;
“(5) A hearing in which extradition to another state is sought;
“(6) A proceeding for judicial hospitalization under Chapter 122, Article 7 (Judicial Hospitalization) or Article 11 (Mentally Ill Criminals), of the General Statutes and a proceeding for involuntary commitment to a treatment facility under Article 5 of Chapter 122 of the Generаl Statutes;
“(7) A civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes; and
“(8) In the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the superior court for trial on a felony charge is possible.”
Dissenting Opinion
dissenting.
I would affirm the judgment below because I am in agreement with the opinion of Chief Judge Haynsworth for a unanimous panel in the Court of Appeals.
In Douglas v. California,
Chief Judge Haynsworth could find “no logical basis for differentiation between appeals of right and permissive review procedures in the context of the Constitution and the right to counsel.”
Chief Judge Haynsworth also correctly observed that the indigent defendant proceeding without counsel is at a substantial disadvantage relative to wealthy defendants represented by counsel when he is forced to fend for himself in seeking discretionary review from the State Supreme Court or from this Court. It may well not be enough to allege error in the courts below in layman's terms; a morе sophisticated approach may be demanded:
“An indigent defendant is as much in need of the*621 assistance of a lawyer in preparing and filing a petition for certiorari as he is in the handling of an appeal as of right. In many appeals, an articulate defendant could file an effective brief by telling his story in simple language without legalisms, but the technical requirements for applications for writs of certiorari are hazards which one untrained in the law could hardly be expected to negotiate.
“ ‘Certiorari proceedings constitute a highly specialized aspect of appellate work. The factors which [a court] deems important in connection with deciding whether to grant certiorari are certainly not within the normal knowledge of an indigent appellant. Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783, 797 (1961) (footnote omitted).’ ”483 F. 2d, at 653 .
Furthermore, the lawyer who handled the first appeal in a case would be familiar with the facts and legal issues involved in the case. It would be a relatively easy matter for the attorney to apply his expertise in filing a petition for discretionary review to a higher court, or to advise his client that such a petition would have no chance of succeeding.
Douglas v. California was grounded on concepts of fairness and equality. The right to seek discretionary review is a substantial one, and one where a lаwyer can be of significant assistance to an indigent defendant. It was correctly perceived below that the “same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.” Id., at 655.
An indigent defendant proceeding without the assistance of counsel would be attempting to satisfy one of three statutory standards for review when seeking certiorari from the North Carolina Supreme Court:
“(1) The subject matter of the appeal has significant public interest, or
“(2) The cause involves legal principles of major significance to the jurisprudence of the State, or
“(3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.” N. C. Gen. Stat. § 7A-31 (c) (1969).
It seems likely that only the third would have been explored in a brief on the merits before the Court of Appeals, and the indigent defendant would draw little assistance from that brief in attempting to satisfy either of the first two standards.
Rule 19 of this Court provides some guidelines for the exercise of our certiorari jurisdiction, including decisions by a state court on federal questions not previously decided by this Court; but it may not be enough simply to assert that there was error in the decision of the court below. Cf. Magnum Import Co. v. Coty,