*1 UNITED STATES v. MacCOLLOM Argued No. 74-1487. March June 1976 Decided *2 Rehnquist, J., judgment of announced the the Court and de- Burger, opinion, livered an in which and J.,C. and Stewart Powell, joined. Blackmun, JJ., J., opinion concurring filed an post, Brennan, J., dissenting judgment, p. in the 329. filed a opinion, Marshall, J., joined, p. post, Stevens, J., in which 330. dissenting opinion, Brennan, White, filed a Mar- and shall, JJ., joined, post, p. 334.
Frank H. Easterbrook for argued cause the United pro hac vice. States With him on the briefs were So- Bork, licitor General Assistant General Thorn- Attorney burgh, and Jerome Feit. M. Strait,
John by appointment A. of the Court, 423 S.U. 1045, argued cause and filed a brief respondent. Rehnquist judgment announced the Justice Mr. opinion Court in which The Chief Justice, join. Justice Powell Justice Stewart, Mr. Mr. This presents case question whether the re- imposed by strictions on the avail- C. ability indigent prisoner to an a free trial aid him in petition preparing for collateral relief are consistent with Fifth Amendment to the Constitu- tion. Appeals The Court of for the Ninth Circuit, every contrast to other of Appeals Court which has ruled on the held such issue, prisoners have an abso- right lute to a transcript. We reverse.
I Respondent of uttering forged currency was convicted in violation of 18 U. jury S. C. after a trial in the § United States District Court for the Western District Washington. On June he was sentenced to years’ imprisonment. He did appeal. Nearly not two se, years pro later in respondent, acting filed the District Court paper designated a “Motion for in Transcript Pauperis.” Forma respondent This was returned to with the advice that he first had pursuant to file a motion to 28 U. S. C. 2255 before the court could act on request for a transcript.
Respondent then filed “complaint for Declaratory Judgment Injunctive and Relief” in alleged which he that he to move this “intends Court for vacation of his pursuant sentence to 28 S. U. C. 2255.” He asserted that he was unable to afford a transcript, that a tran- script would show he not been had afforded effective assistance and that there was insufficient evi- counsel, support dence to guilty. the verdict of complaint The alleged further respondent without a arguments would be “unable to frame his for fair and upon did elaborate The complaint review.” effective for grounds relief. two asserted respondent’s pleading this as motion treated District Court respondent leave 2255, granted 28 U. S. C. § under and held appointed counsel, proceed pauperis, in forma dismissed the hearing the court hearing. After the relief upon claim for failure state a complaint a divided Respondent granted. appealed, could be 2d 1116 Appeals 511 F. panel reversed, of the Court of was entitled to a tran- holding (1974), preparation order him script “in to assist in post-conviction motion 2255.” under U. S. C. [§] Id., 1124. at
II Congress expressly question has addressed fur- nishing public expense 28 U. C. 753 transcripts S. provides pertinent part: (f), which transcripts pro- for furnished in criminal “Fees ceedings persons proceeding under Criminal (18 or in Justice Act C. habeas [§] 3006A)) persons corpus proceedings defend, allowed to sue, by the pauperis, paid or in forma shall be moneys United out of for those appropriated States transcripts purposes. pro- Fees furnished ceedings this brought under section 2255 of title *4 appeal to or in forma persons permitted pau- sue peris paid by shall be the United out of States appropriated purpose for that if the money trial or circuit judge judge certifies that the suit or is that transcript not frivolous and the is the presented by to decide issue needed the suit or . . appeal. .” provides transcript
The statute thus free for indigent prisoners asserting claim under 2255 if a § judge certifies the asserted claim “not that is frivolous”
321 and that the is “needed to decide issue.” by The District its conclusion that Court, upon failed to state a claim which relief could granted, be implicitly of against decided one these two issues respondent. necessary
The Court of Appeals held that it was not 753 (f) grant § to declare in order to unconstitutional respondent relief. the court held that the sec- Rather, prohibit “does not requiring tion courts from .. . government to supply imprisoned with a free he files a 2255 motion. Such before a court order simply would fill not a constitutional deficit by the (Emphasis added.) addressed statute.” 511 F. 2d, 1119-1120.
This is a approach statutory novel construction. The rule is expenditure public established of funds is proper only by when authorized Congress, public funds may expended prohibited by unless Congress. Walker, Reeside 11 v. 272, How.
This particular statute contains grant a limited au thority to the expenditure courts authorize the of pub lic funds for furnishing transcripts plaintiffs in 2255 actions. fact the statute does not “prohibit” the furnishing transcripts of free in other circumstances little since most significance, speak such statutes only in authority terms granting expenditure for the Congress federal funds. Where has addressed subject as it has here, expenditures and authorized where implication a condition is the clear met, is that where expenditure condition is not met, is not authorized. Mills Botany v. United S. States, Assn., Passenger Corp. Passengers (1929); (1974).1 U. 1 Our Brother SteveNs would construe pertinent part transcripts to “make automatically available almost *5 322 statute, the that observes, as true,
It is cor- habeas between distinguishes currently written, 2255 in under § proceeding parties pus petitioners need and showing of must make only the latter transcript. a free to obtain in order nonfrivolousness “remedy” afforded true that it is still Thus while that which with “exactly commensurate is by 2255 § corpus . . by ,”. habeas been available previously had States, (1962), 427 Hill United 368 U. S. transcript has remedy with a free pursue to right Respondent by Congress.2 limited somewhat now been of the writ suspension constitutes a argues that this of the cl. I, 9,§ of Art. in violation corpus habeas Constitution. alia, inter right to that a presupposes, argument
This of the writ necessary concomitant is a a free suspended. be could not the Founders declared which cor- of habeas The writ obviously not case. This is for free tran- provision no until 1944 with pus operated post, think such a construction at 338. We proceedings . . . 2255 § clearly appears Congress to the intent would do violence Congress did section, supra, at language 320. of that from the automatically on direct transcripts available in that section make availability in 2255 appeal, same section their but limited § judge 2255 suit certifies that motions cases where the trial needed decide is not frivolous and that what presented by Brother Stevens advances issue the suit. Our very furnishing transcripts policy free well sound reasons plaintiffs, as to as a as well convicted matter course to § reading plain it is from a pursuing appeals. defendants direct But yet commended these considerations have not Congress. themselves to be, how great might appear difference is not as as it ever, proceed corpus petitioners because habeas wish who pauperis barrier under must still overcome a “nonfrivolous” forma g., Alderman, 2d S. C. 1915. E. Kitchens v. 376 F. (CA5 1967); California, 1965). (CA9 Blair v. 2d 741 F.
323 scripts for indigents. 6, See Stat. 28 U. C. 9a§ S. (1940 ed., Supp. IV). year when in that it Congress, authorized free transcripts for the first could cer- time, tainly limited have the authorization to nonfrivolous cases where a need been Congress had shown. If could have directly thus limited the writ “suspending” without it it, follows may indirectly. that it do so pos- The objection sible is a Fifth process-equal Amendment due protection claim, to which we now turn.
Ill The Court of Appeals technically did not decide this constitutional it issue, thought since it had discovered lacuna in the but its statute, reference to a “constitu- tional deficit” suggests its view on question. this Re- spondent that if urges is read as now statute we read it it, both violates the Due Process Clause of the Fifth Amendment and his protection.” right “equal
The Due Process Clause of Fifth Amendment does any Illinois, not establish right an appeal, see Griffin 351 U. (1956) certainly 12, (plurality and opinion), not any right does establish collaterally a final attack judgment of In conviction.3 this case was granted statutory right of payment without if costs he were an had indigent, pursued and he right (f) public § 753 would have authorized the use funds to proceedings furnish him the trial transcript any without showing part. Having further on his for- gone by this he right, only, existed force of statute years successfully proc- not several later assert a due thereby right ess and obtain review his conviction ancillary free on his terms consti- own corpus, course, of habeas constitutional treatment Clause, 2, I, contained in the Due Process but Art. cl. of the Constitution.
tutional Congress benefit. The conditions which had imposed obtaining on such a (f) § are not arbitrary “so require unreasonable as to ... Douglas their invalidation,” v. California, 372 U. S. (1963) (Harlan, J., dissenting); they rather “com- port with fair procedure,” (Court’s at 357 id., opinion).
Although statutory conditions established 753§ respect with to furnishing a free transcript to mov- *7 ants in 2255 proceedings § are therefore consistent with process the due requirements of the Fifth Amendment, it is undoubtedly they place true that indigent an in a somewhat advantageous less position than person means. But neither Equal the Protection Clause of the Fourteenth nor the Amendment, counterpart equal pro- tection requirement in embodied the Fifth Amendment, guarantees equality “absolute precisely or equal advan- tages,” San Antonio School Rodriguez, Dist. v. 411 U. S. 1, 24 In (1973). the context of a proceeding criminal require they adequate “an opportunity present to fairly claims Moffitt, . . .” Ross [one’s] v. S. . U. 600, 616 (1974).
In Douglas California, v. supra, the Court held that the must provide State indigent counsel an on his first appeal as of right. But in Moffitt, Ross v. supra, we declined to extend that holding discretionary to a second from an appellate intermediate court to the Supreme Court North Carolina. think We distinction between these two holdings of the Court is of considerable assistance in resolving respondent’s equal protection Respondent claim. in this case op- had an portunity for appeal, direct and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings. But having forgone that right, and years instead some later having sought to obtain a free in order to make the best case he could in a proceeding respondent under stands a different position. grants
The Court has held right that when State may deny to collateral it review, right to indi- gent simply inability pay required because of fil- ing Bennett, fee, Smith v. 365 U. There is S. no impediment here; such permitted to was proceed pauperis 2255 action. The forma Court has also held that a State not confide public defender the final decision a tran- whether script shall be to the available criminal defendant who collaterally Brown, conviction, attacks his Lane 477 (1963). There Court observed that provision state upon “confers a state officer outside the judicial system power to take from an hope all of any appeal at Id., all.” at 485. congressional statute governing furnishing of
free transcripts plaintiffs in actions has no such infirmity. provisions The decision as to the of the tran- script public expense initially by is made an official *8 very at the judicial system heart of the judge district —a judicial in the district in which plaintiff § was tried. The district power court has to order a free transcript furnished if finds it that the “suit is ... not frivolous and that transcript is needed to decide presented the issue § . . U. S. C. 753 (f). . .” We think that the formula by Congress devised satis- fies equal protection component of the Fifth Amend- Respondent ment. chose to his forgo opportunity for direct appeal with its attendant unconditional free tran- script. This choice affects his later equal protection claim as well his process due claim. Equal protec- tion does not require the Government to furnish to the delayed duplicate of right appeal with transcript attendant free which it offered in the first of means defendant though a criminal even instance, pur- transcript such a purchase decide to might well is one question 2255. The basic under § suit of relief for procedures respondent’s access adequacy of it supra, and Moffitt, conviction, his Ross review of of avenues which light decided in the must be those he now seeks well as not to follow as chose stage the collateral-relief enough it widen. We think paid provided that Congress that has district one to a by public funds if demonstrates and that frivolous, his 2255 claim is not judge that presented. is needed to decide issue if trial counsel urged argument in oral Respondent defendant, job representing a criminal poor had done a to forgo the defendant might urge such counsel well of ineffec- right prevent his in order to a claim ap- on the being tive of counsel from raised assistance certainly such a state of peal. It conceivable that fidelity to the might notwithstanding the exist, facts by the repeatedly of their clients demonstrated interest majority legal pro- the members of the overwhelming require But does not that a fession. plaintiff prove must his claim in order to obtain a tran- but convince the district court that script, he Court such claim is not frivolous. Had the District conclusory merely here been confronted not with indicating allegations but with some factual allegation, right respondent’s a denial of Sixth Amendment explicit counsel, together with an additional assertion urged respondent forgo trial counsel had such might that court have concluded that appeal, was and further that a free frivolous, claim decided *9 transcript pursuant should be furnished 753 .4(f) 4 usually presented judge is he Since 2255 claim the trial likely independent performance recollection of will have counsel’s
327 only But is not our case. Respondent made allegation naked of ineffective counsel. assistance of any may Since he discussion have had with trial desirability counsel as to the nor- of would not mally appear transcript proceedings trial, of furnishing of such not aided would have him in refreshing his recollection such of discussions. failure flesh this aspect respondent’s out of claim of ineffective assistance of likely is not counsel, then, to have by been cured transcript.
We think this is an opinions area the law where the of the of appeals courts are particular entitled to they since weight, represent expositions federal and law, expressions constitutional but also essentially practical on judgment which those questions courts must confront far fact more than we do. The that with the exception presently under decision they unanimously review have condi concluded that the by tions 753 (f) establishéd for the of a furnishing free do Fifth not violate the Amendment is A significant.5 practical reason for their conclusion by well expressed Haynsworth in Judge United States v. Shoaf, 341 2d (CA4 F. 832 which 1964), he said that court: grounds
“The usual
for successful collateral at
upon
tacks
arise
out
out
occurrences
convictions
well
lead him to conclude
movant’s
claim is
nonfrivolous.
5
g.,
Maine,
E.
Ellis v.
United
(CA1
448
1971);
F. 2d
1325
Henderson,
States
ex rel.
(CA2
v.
2d
524 F.
147
Buford
Shoaf,
1975);
United States v.
(CA4 1964);
United
side of the courtroom or of events the courtroom of which the defendant was aware and can recall without the need of having memory his by refreshed reading transcript. a may He well have need of a support his [to but if rarely, claim] ever, to become aware ... events or occur rences constitute ground for collateral at Id., at 835.6 tack,”
We conclude that the fact that a transcript was avail- respondent able had chosen from his convic- tion, and remained available on the conditions forth set in 753 to indigent § an proceeding under § afforded adequate opportunity to attack his con- viction. To hold otherwise would place be to the indi- gent defendant in a more position favorable than a similarly prisoner situated of some, but not unlimited, means, presumably who would make an evaluation much like prescribed in 753 (f) spent before he his own funds transcript. for a fact particular might
“[T]he service be of benefit to an indigent defendant does not mean the service is constitutionally required. The duty of the State under our duplicate cases is not to legal arsenal that privately by retained a criminal defendant in continuing effort to reverse his but conviction, to assure de- fendant an adequate opportunity present claims fairly the context of the appellate State’s Moffitt, Ross process.” S.,U. at 616. opinion aspects This question and other of this thoroughly were shortly discussed after the 1965 amendment in Black- mun, Pauperis Allowance of In Appeals Forma 2255 and Corpus Cases, Habeas F. R. D. 343 judgment the Court Appeals for the Ninth Circuit is
Reversed. *11 Mr. Justice in Blackmun, concurring judgment. the I in am complete accord in with what is said 1 of n. plurality ante, the opinion, regarding at 321-322, Mr. Justice Stevens’ dissent. It is not this Court’s function to rewrite 28 (f) S. C. order to reflect —as that appears dissent to urge me to regarded be as —what policy sound for the of administration our criminal system. justice
I write to separately, emphasize the narrow- however, ness of the constitutional us issue that is before and ease of its I resolution. The to this case lies, answer think, in the fact respondent that MacCollom has opportunity present current to his we fairly, claims and need not consider the significance constitutional of what he might done have time a direct from his conviction could have been taken. me,
For the issue in this case is whether the Consti- requires tution transcript provided that a an be when indigent showing, any particu- makes no degree with larity, requires that he transcript order to make an effective collateral attack on his conviction. The crucial Court inquiry, analogous said Four- teenth Amendment is whether context, § 753 affords indigents “an adequate opportunity present to their fairly adversary system.” claims within the Ross Moffitt, U. S.
Here, respondent permitted proceed in was to forma pauperis, was for appointed and counsel him. In order to transcript for him trial, obtain of his he was required show claim that his was not frivolous and that there basis, grounded was a on some facts, articulable him in his would assist that believing
for re- is no constitutional Clearly, there proceeding. indigent provide an States quirement United necessary is not transcript when with a his claim is when prove his or claim, for him in order require does the Constitution on its face. Nor frivolous legal tool, every possible furnished no matter how value, its speculative how no matter merely person may be, because it devoid assistance his resources might choose waste of unlimited means quest in a that kind. present way open thus was very (f). One fairly bounds within the
claim re- join judgment no I therefore go further. need versing Appeals. the Court *12 with whom Justice Brennan, Mr. Justice Mar- Mr. dissenting. shall joins, sep- this my
I Brother dissent but add join Stevens’ the my plu- with disagreement dissent to record arate furnish the to an rality’s view that Government’s refusal proceeding a free trial in a indigent defendant upon merely showing of in- 2255, under 28 U. C.S. protection of deny respondent equal does digency, as the against Government, laws secured the Federal of the plurality through Due Process Clause concedes, Valeo, Buckley Fifth v. 424 U. S. 871, Amendment. See (1976); Weinberger Wiesenfeld, 420 636, v. 638 n. U. S. 2 (1975). judicial system aim our entire central [is
“[T]he people charged all with crime so far as the must, that] 'stand on an concerned, equality law is before bar of ” justice every Illinois, court,’ American 351 v. Griffin (1956) (plurality 17 for this S. is a 12, opinion), U. affording justice to "country equal dedicated to all and in the special privileges to none administration of its Id., criminal at 19. “Our for more than law.” decisions a decade now have made clear that differences access to the instruments legal needed vindicate when rights, upon based financial situation of the are defendant, LaVallee, repugnant to the v. Constitution.” Roberts 389 U. S. 40, (1967). Court Griffin, Thus, “[djestitute held that defendants must afforded as adequate appellate money review who as defendants have enough buy transcripts,” 351 U. S., therefore the State must furnish indigent defendant with a purposes free trial appeal. direct
The principle of equality was not limited to Griffin transcripts for purposes of direct appellate review. In Bennett, Smith v. 365 U. 708 (1961), S. the Court invali- filing dated a fee for corpus state habeas in- applied to digents. The invalidation held be required by was an holding earlier decision that a State could not require pay filing fee being before ap- allowed to peal in Ohio, one its courts. Burns v. U. S. Brown, Later, Lane v. 372 U. S. (1963), held that “Smith makes clear that the Griffin principle applies also to state proceedings collateral . ...” principle equality was next applied to Griffin from appeals state In proceedings. Long habeas Iowa, District Court 192 (1966), Court, *13 stating that established a “having post-conviction pro cedure, a State cannot condition its availability to an indigent upon any financial consideration,” held that an indigent defendant must be furnished a transcript free of his state habeas proceedings purposes for of appeal from Id., a denial of that relief. 194. at And in Gard ner California, v. 393 S. 367 U. Court went (1969), required still the furnishing further of a transcript proceeding purposes of a habeas for the of a second such opinion today that plurality’s proceeding. Thus, indigency to show more than respondent may required purposes for being entitled to his trial before departure from plain of collateral review is a Griffin progeny. and its for egregious, is particularly
The denial this case that he was respondent’s one of claims on the merits is denied effective assistance counsel. Substantiation of a impossible is without the aid virtually such a claim respond- transcript. plurality denigrates Yet trial Ante, allegation.” Es- ent’s claim as a “naked at 327. making he denied a for sentially, therefore, is an allegation an unsubstantiated that obvi- allegation, ously transcript.1 he cannot establish without a emphasis equal
It bears that denial of where, here, protection is the it matters under our issue, not, cases, opportunity present had a fair ap- defense and have his conviction on direct reviewed peal. denying The unfairness born of discrimination any equal protection is as offensive to the Constitution as resulting procedural unfairness from deficiencies in the I system. accept plurality’s criminal cannot Thus, argument constitutionally could be de- insufficiency Respondent’s allegation other is of the evidence. plainly allegation of our decisions Two indicate this suffices to require Mayer City provision transcript. of a verbatim See v. Chicago, Draper Washington, (1971); 404 U. U. S. (1963). Mayer allegation prejudicial prose- indicated that an also S., requires misconduct, provision cutorial at of a also transcript. claim, purposes appeal of substantiation on or That review, respondent’s first claim collateral like of ineffective assist Mayer, S., 404 U. held that ance of where counsel. insufficiency grounds prosecutorial of the evidence and are misconduct, the defendant need “make out a colorable need for transcript” complete in order be entitled it. *14 “[Respondent nied free because in this case an opportunity had direct appeal, and had he chosen to pursue it he would have been furnished a free Ante, the trial proceedings.” at The Consti- 324. tution demands that his respondent, despite indigency, be afforded the opportunity same for collateral review of his conviction as nonindigent.2 “If Govern- [the general has a policy allowing relief], ment] [collateral it cannot make lack of means an bar to ex- effective ercise of this opportunity. The cannot [Government] keep the word of promise to the ear of con- illegally those Illinois, victed and break it to hope.” their v. Griffin at J., concurring U. S., (Frankfurter, judgment). plurality’s ante, upon at Ross reliance, v.
Moffitt, 417 U. S. (1974), proposition for the the context of [equal pro a criminal proceeding “[i]n require[s] only adequate opportunity 'an tection] ” present claims fairly’ patently misplaced. [one’s] quotation Boss, This from read in speaks not context, merely to equality of opportunity in the overall criminal but to equality also any process, opportunity stage of the process validity where the of the defendant’s restraint or conviction primary is the consideration.
2Indeed, Ohio, in Burns (1959), filing S. 252 fee for appeals direct held applied was invalid as indigents, though even indigent petitioner already there had appellate received one review his conviction. As the Court stated: argues petitioner State appellate received one “[T]he review Griffin, Ohio, conviction while in Illinois had left the de- any judicial fendant without review of his This conviction. is a for, holds, distinction without a difference once the State Griffin appellate chooses establish cases, in criminal review it indigents any foreclose from phase procedure access be- of that Id., poverty.” cause of their at 257. *15 ade- argument that the wholly I fallacious reject trial on at and present claims quacy opportunity of col- importance the far diminishes appeal so direct between that discrimination review, lateral proceedings constitu- post-conviction nonindigent in implicitly if not ex- argument is tionally That tolerable. that of our decisions rejected in unbroken line plicitly the protection equal distinction, purposes make no trials and proceedings and between collateral analysis, necessarily be con- Any distinction must appeals. direct no than the less stitutionally where stakes are intolerable Any dis- constitutionality of a criminal conviction. with the ex- plainly inconsistent tinction would also in Art. cl. recognition given corpus I, 9, 2, habeas plicit Noia, Fay v. U. 372 S. 391, Constitution. See “history prisoners, And for (1963). 399-403 federal intended to afford federal makes clear that 2255 was scope to federal habeas prisoners remedy identical States, Davis v. United corpus.” (1974).
Today’s empties promise of all Court’s decision years ago applying six that decisions assurance pas- pointedly “have demonstrated that Griffin sage heightened than weak- time rather has [by attempts mitigate ened the this Court] disparate in the indigents process.” treatment of criminal Illinois, Williams U. S.
dissent. Stevens,
Mr. Justice with whom Mr. Bren- Justice nan, Mr. Justice and Mr. Justice Marshall White, join, dissenting. question
The decisive this is whether, judg- case sufficiency ing the of respondent’s motion, should we allegations that his are assume true.
He alleged has there was insufficient evidence to If appeal. but he did not support conviction, obtained the he would have had appealed, expense.1 of the He has trial at Government him alleged lawyer provide also that his did not with representation the effective trial Sixth Amendment and that this conclusion would be requires, supported by transcript. an examination the trial Respondent memory has neither nor the training allege the factual basis for that conclusion. however, If, *16 that conclusion is he is not to entitled a accurate, to transcript but a trial. new
As plurality points the legitimate there are reasons out, for holding respondent’s specific that allegations are In enough. most the pleader cases should be to set able forth support more factual details to his con- ultimate If clusion. respondent’s pleading is almost adequate, any general statement claiming ineffective assistance counsel prisoner would pro- entitle to a in a ceeding In § under 2255. to right a tran- short, script stage at would be almost as automatic as when a direct appeal is taken. this Thus, sense, case presents the question whether the right defendant’s to a transcript at Government expense if should survive he fails to take appeal. a direct
There are two Iwhy reasons would answer ques- tion in the accept respondent’s affirmative allegations at face for purposes value of determining whether is motion frivolous and whether necessary is to decide the he claims asserts. § 753 should interpreted be to
First, establish a standard of nonfrivolousness and fairly need that be administered. The statute itself does not address the judges standard that are to use in determining “that suit or is not frivolous and that the transcript (f);
1 28U. S. C. 18 U. S. C. .(c), (d)(6). §753 §§3006A (a), ap- by or the suit presented the issue decide needed history is also on silent legislative and the peal,” impose the statute plurality reads question.2 The putting burden 2255 movant upon a denial indicating allegations” factual forward “some ante, creates reading but this S26, at rights, constitutional exercise the discretion judges risk district will than a haphazard rather by conferred the statute on a no many judge In can have principled basis. cases, or movant whether not the determining rational basis first ultimately succeed the merits without could on provision added transcripts The for free 2255 cases was by 89-167, 647, verbatim in 1965 Pub. L. Stat. followed proposal Report in 1961. of the Judi of the Judicial Conference Proceedings States, 100-101 cial the United Conference of transcripts primary purpose The of the amendment was make on prisoners on motions as as available federal Cong., Sess. corpus. Rep. H. R. 89th 1st habeas See No. Cong. (1965); 111 (1965); Cong., 89th 1st Rep. No. Sess. Celler); id., (1965) (remarks Rep. 20828-20829. Rec. 5000 legislative what sources do not discuss standards should applied determining need. nonfrivolousness and *17 question
Specifically, legislative history the does not address the showing prisoners required stronger a whether federal are to make of cor- nonfrivolousness and need on motions than on habeas 2255 § pus. (f) requires Although expressly nonfrivo- 753 certification of § requires cases, lousness and in leave to prior need 2255 it § proceed pauperis pro- in corpus in both habeas and 2255 § forma ceedings. requirement, turn, requirement imports This in of the (d). legisla- nonfrivolousness contained in 28 C. U. S. §1915 history tive contains no the standard of nonfrivo- indication any stronger imposed lousness for 2255 cases was to be than § by (d). Blackmun, Pauperis 1915 See of In Allowance Forma Appeals Cases, Corpus and Habeas 43 D. 356- 2255 F. R. Indeed, the 357 nowhere mentioned. Nor does §1915 requirement impose any upon 2255 need additional burden of movants, (d) reasonably and could not be in- since §§ petitioners a terpreted grant right transcript corpus to to to habeas be who assert claims that can resolved without nonfrivolous transcript. Unquestionably some
ordering transcript.3 judges routinely order a in a case like this while uncertainty others do not. Given of the the standard adopted by plurality,4 indigent’s right protec- the the to against tion appointed risk that his counsel inwas depends fact happenstance ineffective on the of what dis- trict judge assigned has been to his case. Such an im- portant protection depend should not on such a fortui- tous short, circumstance. In the administration justice in the courts federal would be if more evenhanded the indigent’s right to were not dependent upon either the advice he receives from counsel at the time when he still file a direct appeal,5 or upon gifted lawyers usually Since our most daily trial copy need exactly sure happened what courtroom preceding day, and passage since the of time is any bound to cause trial to many be blended judge’s with memory, others in the it is almost judge inconceivable that can determine whether a motion has arguable merit without the transcript. benefit of a plurality regard respondent’s Would pleadings as sufficient if alleged lawyer he had object that his failed to to inadmissible evi dence, argue effectively failed to jury, failed to him advise properly adequate appeal rights, about his failed to or conduct an key prosecution allegations cross-examination of witnesses? Such are just easily general as made as the claim of ineffectiveness of counsel just by support as difficult to factual details without assist transcript. requiring ance of a judge Rather than' the district permutations allegations take the time to evaluate all the of such these, is it more sensible to make the record available automatically? promptly and 5Indeed, attorney respondent’s file the failure a notice appeal supports itself his claim of assistance of denial effective counsel. criminal Because notice of from a conviction must 10-day period specified App. be filed within the in Fed. Rule Proc. (b), routinely pro most defense counsel file such notice order to *18 right appeal transcript. tect their clients’ to and to obtain a Fur thermore, case, respondent Court, present represented in the in this Court, appeal although in the that he did not from his District lawyer by he was advised “‘it would conviction because if the tran- judge that persuade to a trial ability later that counsel’s advice would show script available, it were is at entitled actually unsound. The least was to de- completeness permit a transcript of sufficient to a United Coppedge v. Cf. of frivolousness. termination States, 438, 445-446.6 369 U. S. ruling respondent’s in my judgment a
Second, jus- improve to the administration would tend favor probable, system. If, as seems tice in the federal transcripts available almost ruling such a would make make automatically in it would proceedings, § 2255 prac- adopt prosecutors federal good sense for the con- routinely transcript at ordering tice of in conviction. every resulting trial criminal clusion delay practice would eliminate a serious cause Such a assuming Even processing appeals.7 in the of criminal Respond- modify for interfere with a motion to sentence.’” Brief ent 3. 6Although equivalent right I “almost” the have described that as right appeal, of the on direct the differ absolute full significant. Congress ence the two is Before amended between availability transcripts, Pub. L. 91- provide for automatic already transcripts 545, 1412, the statute authorized 84 Stat. (f) (1964 pauperis, C. 753 appellants proceeding in 28 U. S. forma 446, ed., Coppedge, S., only en V), but, 369 U. it Supp. under nonfrivo- to determine appellant titled the to a sufficient give the Congress amended the statute to lousness. The fact that (a) that right complete transcript demonstrates appellant the to a (b) recognition difference, Congress was aware of this as valuable as right context “almost” which Congress. the intent of right direct is consistent with on Superintendent, Virginia Judge noted in Jones As Craven denied, (CA4 1972), rehearing Farm, 460 F. 2d State n. (1973): “It has been denied, 410 S. 944 2d 465 F. cert. deciding appeals delay in is often again time and noted transcript.” delay getting Since the allowance attributable (a system the federal appeal is routine in pending almost of bail restudied), incidentally, might well be defendants routine, by delaying appeals long their postpone their incarceration *19 monetary an in costs,8 increase we should take into ac- unnecessary count the delay costs associated with in the appellate process the saving judges' and in time that result would from of the elimination the need to decide questions such of as this. One our Nation’s scarcest resources is the of judges; spending time our if a few dollars9 for disposition automatic of preliminary issues will enable them to devote time adjudicating extra disputes on the merits, money spent. will be well See 450-452; id., Coppedge, at 458 supra, (Stewart, J., concurring); J. Law: for American Case The Frank, possible, thus, and, they practical have a for not motivation ordering transcripts any necessary. sooner than 8Appeals approximately are now filed in of criminal cases 75% in which a is defendant convicted after trial. rate has increased steadily approximately from in approxi Fiscal Year 1966 to 46% mately in Fiscal Year where it has remained. See 75% Reports Annual of the Director of the Administrative Office of Courts, (com United States Bl, (1966-1969, 1971-1975) Tables D4 pare appeals total criminal commenced with total convictions after trial). appeals high Since percentage are taken from such a of trial, experience convictions after since teaches us that apt rate is more decrease, to increase than appreciable and since an transcripts number of prepared are no doubt in proceedings already, requiring a rule preparation the automatic of a would impact have a budget. minimal on the if Even the total transcripts number of significantly, would increase it is doubtful parallel there would be a increase cost because there would surely be saving substituting practice a substantial a routine present practice ordering individually, transcripts of often at a reporter time appellate when the court faced with deadline. advisedly 9 1 use the words “few dollars” because the entire cost subsidizing indigents, including of of the defense the fees ex and penses appointed counsel, has amounted between 5% 9% expenditures years, for the lower federal courts in recent budget. turn been than have less of the national Mo 1% Reports Annual of the Director of the Administrative Office (1975), (1974), (1973), United States Courts VI-3 IV-2 III-3 (1972); Budget III-3 of the United States Government: Fiscal 1977, p. Year (1976). importantly, More 85-110 Reform
Radical minimize transcripts would availability routine it can be insignificant is not so danger —which *20 defendant rights safely ignored —that appointed ineptitude of his of the lost because may be counsel. necessary my view does reflect
I recognize that respondent's § applied the statute reading as a matter permissible to rule certainly it but motion, non- plead are sufficient allegations that his of law tran- be resolved without a that cannot frivolous claim added ruling would have script.10 Such a issue discussed the constitutional avoiding virtue United States v. plurality’s opinion. III of the Cf. Part I Fuey Moy, Jin 401. On would 241 17. 394, balance, Appeals affirm judgment the Court therefore Circuit. Ninth v. Rex 425 U. S. Hospital Bldg. Hospital Trustees, Cf. Co. 519, 520-521; Conley 746-747; Kerner, Gibson, Haines U. S. v. 355 U. S. 45-46.