*2
сonviction relief was denied.
JOLLY,
Before
EMILIO M. GARZA
Hughes then filed the
petition
instant
and BENAVIDES,
Judges.
Circuit
for a
writ
corpus
habeas
pursuant to 28
GARZA,
EMILIO M.
Judge:
Circuit
U.S.C.
2254 in the district court. As
relief,
he alleged that
Booker,
Walter
he had
Superintendent of the
been denied his
Mississipрi
right
constitutional
State
to a
Penitentiary
Parch-
(“the
and that he had
State”),
man
appeals
received
the district
ineffective
court’s decision
assistance of
granting
appellate counsel
appellee Simeon
(1)
because
Hughes’
(“Hughes”)
attorney had
motion for a
filed a
writ of
brief
(2)
habeas
corpus
raising
specific issues,
because he
received ineffec-
failed to
object
tive assistance of
to a
appellate counsel in
defective indictment.
viola-
The dis-
tion of Anders v.
trict
California,
adopting
386
U.S.
modified version of
court—
87
(1967)
S.Ct.
18
magistrate
L.Ed.2d
the
judge’s
recommendation—
Ohio,
Penson
U.S.
found
Hughes
109 S.Ct.
had been denied effec-
(1988).
record excerpt I do not Hughes that any believe filed his habeas petition after substained 24, 1996, [sic] issue еvidencing April revers- and it subject therefore ible error exists in the trial of this cause. Anti-Terrorism and Death Effective Nevertheless, the requests Defendant a Penalty (“AEDPA”). Act of 1996 See review of the trial transcript and record Lindh v. Murphy, 521 U.S. conviction, аffirming Hughes' briefing Missis- any den of issue Appellant, which sippi court stated: appeal, Hughes.does "On by aided cannot find or claim as not specific raise issue before this Court. error. The brief filed on of Hughes behalf Hughes states that he can specific find no argument contains neither support nor au- instance of reversible error in this cause.... Accordingly, Hughes thorities. cannot over- Because fails to show error come the presumption of correctness accord- part court, trial we affirm his convic- judgment.” ed to the trial court's tion. ... This not assume the bur- consequences of Penson considered Be- L.Ed.2d 481 representa- from attorney’s withdrawal the district agree with cause as re- filing a sufficient tion decision .Mississiрpi California, AEDPA, . quired merits,” under “on *3 1396, In L.Ed.2d 738, 18 87 S.Ct. relief unless collateral grant may not recognized Anders, Court Supreme opinion: Supreme repre- from could counsel withdraw that con- that was (1) a decision in resulted an fan- denying appellant sentаtion unreasonable to, an involved trary or safe- only where certain representation Feder- of, clearly established application 744, at 87 See id. followed.2 were guards Supreme by law, determined as al at 1400. S.Ct. States. of United Cоurt 2254(d). that a de previously held
28.U.S.C.
haveWe
effective
constructively denied
is
fendant
a con
defendant
criminal
A
on di
counsel
counsel where
of
assistance
of
assistance
to effective
right
stitutional
asserting no
brief
appeal
a
rect
right. See
as of
appeal
in his first
counsel
only a
requesting
appeal
for
393-95,
105
469 U.S.
Lucey,
v.
Evitts
errors.
patent
for
of the record
review
821
L.Ed.2d
83
S.Ct.
(5th
885
Whitley, 905 F.2d
v.
See
distin
Ohio,
Penson v.
Lofton
F.2d
868
Cir.1990);
Lynaugh,
v.
Lombard
in
claims
types of
two
between
guished
Cir.1989).
(5th
Here, counsel
1475, 1480
appellate
of
assistance
volving denial of
to
or seek
an
not file
argues
did
First,
a petitioner
where
counsel.
Instead,
representation.
from
a
fully brief
withdraw
or
to assert
that counsel failed
stating that
a brief
attorney filed
Hughes’
his
claim,
must show
he
particular
“evidencing revers
no issue
could find
he
was both deficient
attorney’s performance
with the district
agree
We
Penson,
error.”
at
ible
488 U.S.
See
prejudicial.
equiva
functional
that this was the
court
(citing Strickland
84, 109
аt
S.Ct.
352-54
withdrawing
representation
from
689-94,
of
104 lent
Washington, 466
requirements
complying with
2065-67,
674 without
L.Ed.2d
80
S.Ct.
at
F.2d
Lofton, 905
Anders.3 See
complained-of of
(1984)). Second, where the
formally repre
(“Lofton may have been
ac
counsel constituted
performance
tо
counsel,
the failure
raise
but
by
sented
complete denial
or constructive
tual
equivalent
appeal
any grounds
pre
is
prejudice
assistance
withdrawal.”); see also
88-89,
attorney’s
his
id.,
109 of
488 U.S.
See
sumed.
(finding
Lombard,
con
F.2d at 1480
(“the actuаl or constructive
at 354
attorney
where
denial
counsel
alto
structive
of counsel
of the assistance
denial
to
Lombard’s
attempt
aid
nothing
“did
presumed
result
legally
is
gether
of the
perfecting
the initial
omitted);
beyond
(citation
aрpeal
also
see
prejudice”)
itself.”). Accordingly, under Pen-
Puckett,
F.2d
451-52
Sharp v.
prejudice.
son,
presumption
a
apply
Cir.1991).
(5th
State,
(Miss.1986). We dis-
Anders,
490 So.2d
conduct a"con-
must
counsel
2. Under
who be-
Killingsworth, counsel
agree.
the case beforе
Under
examination”
scientious
a case.
merit must
from
is without
seeking permission to withdraw
client’s
lieves his
request
That
why
at 1400.
case is
(1)
87 S.Ct.
represent
id. at
to the court
fully
See
must be
appel-
to the
a brief
accompanied
(2)
represen-
copy
a
of that
send
meritless
anything
record
"referring
in the
late court
The defendant
defendant.
to the
tation
appeal." id.
support
arguably
might
opportunity to
reasonable
be furnished
then
"full
a
conduct
appellate
must then
сourt
The
See
the court.
with
comments
file his own
id.,
proceeding^] to decide
of all the
examination
Here,
Hughes’
while
at 851.
So.2d
Id.
wholly
frivolous."
the case
whether
a
right to file
Hughes of his
informed
brief,
repre-
fully
failed to
he
pro se
attorney
argues that
3. The State
client)
(or
why he viewed
to the
sent
stringent
allegedly
complied
more
with the
without merit.
Hughes’ case as
Killingsworth
requirements
withdrawal
The State
contends that
should issue—the form of Hughes’ indictment—
nonetheless be denied relief because the
existed. While
agree
with the district
only specific appellate issue that he rais-
court on
point,
we also agree with the
es—-that his indictment was defective be- State that this is
longer
a valid argum
cause it did not conclude with the рhrase
ent.4 Nonetheless, we hold that the dis
“against
the peace and dignity of the
trict
correct in granting Hughes
state” —is without
previous
Our
merit.
habeas relief.
In presenting
argument,
its
cases applying Penson have
empha-
indeed
the State еssentially asks us to
conduct
sized either that there were non-frivolous harmless error or prejudice analysis. This
issues
Lombard,
for direct
see
appeal,
868 ignores the clear import of Penson: Once
(“[F]or
F.2d at 1484
it is
even clear wé determinе that a defendant has been
*4
if,
here,
that
as
there are one or more
constructively denied appellate counsel—
indisputably nonfrivolous issues for appeal,
as we have
“any discussion even
here—
counsel must do morе than simply file a
flirting with the language of Strickland’s
wholly conclusory
”);
‘no merit’ brief....
prejudice or harmless error analysis is un
(“Our
Lofton,
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