*1 SMITH, ROBBINS WARDEN 5, 1999 Argued January No. 98-1037. October Decided *4 Thomas, J., Court, Rehnquist, delivered opinion which J., O’Connor, Scalia, Kennedy, JJ., Stevens, J., C. and joined. Ginsburg, J., a dissenting post, p. 289. joined, filed in which opinion, Souter, J., Stevens, Ginsburg, dissenting filed which opinion, Breyer, JJ., joined, post, p. 292. Jorstad,

Carol Frederick General of Deputy Attorney *5 the cause for her California, With on argued petitioner. David Dru- were Bill P. briefs General, Lockyer, Attorney linér, Carol Wendelin General, Chief Assistant Attorney Pollack, and Donald General, Senior Assistant Attorney E. De Nicola, General. Attorney Deputy by appointment Nessim, Court, 526 S.

Ronald U. J. argued respondent. cause for With him on the A Newman.* brief were Thomas R. Freeman Elizabeth and opinion delivered the of the Court. Justice Thomas attorney infrequently, appointed represent an Not indigent appeal appeal would defendant on concludes that an requests him appellate court allow be frivolous and that the dispose that the court of the case without withdraw or filing In Anders 386 U. S. of merits briefs. v. California, (1967), protect indigent defend- that, we held order to right appellate counsel, courts must ants’ constitutional safeguard against granting requests such in cases the risk of actually appeal inade- where the is not frivolous. We found appellate quate permitted California’s —which conelusory stating upon filing a counsel to letter withdraw permitted “no and had merit” upon reaching court to conclu- affirm the conviction same following set sion a review of the record. We went of State of Ari- amid curiae *Briefs were filed for the urging reversal Colleen L. Arizona, Napolitano, Janet Attorney zona et General by al. of French, McMurde; General, and Paul J. Attorney Assistant Pryor of States as follows: Bill Attorneys General for their respective Mike Alabama, Brady M. Jane Thurbert E. Baker of Delaware, Georgia, of Moore of D. Michael Fisher Nevada, Papa Frankie Sue Del of Mississippi, Colorado, Tennessee, Pennsylvania, Paul G.Summers of Ken Salazar of of Louisiana, Don Florida, Ieyoub Robert A Butterworth of Richard P. of Mexico, Charles M. Stenberg Patricia A Madrid Nebraska, New Condon of South Mark L. the Cali- Earley Carolina, Virginia; Gerstein, Jay-Alien Robert S. Academy Appellate Lawyers by fornia Heinke, Eisen, Davis, Wendy C. S. Berger, Michael M. Peter W. Rex Lascher, Steiner; Marer, B. Gerald Z. and Jonathan and for the Criminal L. Hobson. S. and Charles Scheidegger Kent Justice Legal Foundation amid curiae Briefs of were filed for National urging affirmance Friedman; and for Leon Lawyers by Association of Criminal Defense B. Dashjian. Michael Delgado by Garcia Jesus R. Arabian et al. Gregory Smith filed a brief for retired Justice Armand as amici curiae. *6 adopted acceptable procedure.

forth an has since California procedure, respects departs from the new which in some question one we is whether delineated in Anders. The departure proce- The is fatal. We hold that it is not. dure we prophylactic one; sketched in the States Anders is proce- adopt long are free those procedures, different so adequately right appellate safeguard dures defendant’s counsel.

I A People procedure, Under California’s new established Wende, 25 3d 436, Cal. 600 P. 2d 1074-1075 441-442, (1979), g., see, followed numerous since e. then, cases People Rptr. App. Rowland, 2d 61, 63, 75 Cal. 4th Cal. (1999), upon concluding appeal 900, 901 counsel, that an would be appellate frivolous, files a brief with the court that history procedural summarizes the case, and factual with citations of the record. He that he has re also attests viewed the explained record, his of the case to his evaluation provided client, copy brief, client with a and in right formed the pro supplemental client of his to file a se brief. requests independently He further ex that the court arguable amine the record for issues. Unlike under An- procedure, ders following explicitly Wende neither states that his review has led him to conclude that an would be (although implicit, frivolous that is considered see 1075) Wende, requests 25 Cal. at at nor 3d, 441-442, 600 2d, P. leave to withdraw. Instead, he silent the merits of the on expresses any case availability his to brief issues might briefing. generally which id., the court desire 438, 441-442, 2d, at 1072, P. 1074-1075. receiving upon

The court, brief,” a “Wende must regardless “conduct a review of the entire record,” 441-442, pro Id., whether the se defendant has filed a brief. Supreme 2d, P. The California Court 1074-1075. *7 notwithstanding thorough required a review in such Wende unnecessary argument dissenting it was and a Justice’s performs Anders. under that a court exceeded the review (Clark, 2d, J., at con 444-445, at 600 P. 1077 3d, 25 See Cal. judgment dissenting part); at curring id., in see also in and (“The holding precise in Anders was 2d, at 1076 444, 600 P enough.’. ‘was not . . what ‘no merit’ letter . . . Just that a majority the of the court in that ‘enough’ clear, not but is require appellate an court function as co- to case did counsel”). appellate after of the rec court, If the its review appeal pursuant frivolous, finds the to be Wende, also ord (majority id., 443, 2d, at at 1076 affirm. See P (i. opinion). arguable e., If, however, it finds an nonfrivo lous) briefing Id., 3, issue, it orders on that issue. n. 2d, n. 3.1 600 P.

B jury respondent In a state-court convicted 1990, California (for fatally shooting second-degree murder Lee Robbins roommate) grand and of theft of an automobile his former (for stealing a he after truck that used to flee the State com- murder). mitting years the Robbins was to 17 sentenced appeal represent elected to himself but on trial, life. He frivolity, In addition to this double review and double determination of review, through California a California layer Appellate affords third the the Projects, by Appeal described in recent California Court of opinion for the First District: court; are under contract the their contrac appellate projects]

“[The tual counsel court-appointed duties include review of records to assist no If the counsel can find identifying court-appointed issues brief. brief, to file a Wende an appellate meritorious issues to raise decides again to project reviews the record determine whether attorney staff Thus, brief is by Wende brief is the time the Wende filed appropriate. ease been reviewed both Appeal, the Court the record has (who qualified well to handle court-appointed presumably case) proj on the staff of experienced attorney [the Hackett, 1297, 1311, 43 2d Rptr. Cal. 4th Cal. App. ect].” People appointed appointed counsel, con- His he received counsel. cluding frivolous, that an would be filed with Cali- complied Appeal fornia Court of a brief that with Wende procedure.2 right availed Robbins also himself his under pro supplemental filing file a brief, Wende to se brief in he that there was insufficient which contended evidence support prosecutor his conviction and that violated (1963), Maryland, Brady by failing to 373 U. S. 83 disclose exculpatory evidence. *8 Appeal, agreeing

The Court of California counsel's explained case, assessment of the The court affirmed. it had, had “examined entire a result, record” as fully complied concluded both that counsel had with his re- sponsibilities arguable under Wende and that “no issues App. exist.” 39. The court added that the two issues that supplemental support Robbins raised in had no his brief Supreme the record. Ibid. The California Court denied petition Robbins’ for review. postconviction exhausting remedies,

After state Robbins filed in the United States District for the Dis- Court Central petition trict California the instant a writ of for habeas §2254.3 corpus pursuant to 28 U. S. C. Robbins renewed his Brady argued claim, trial court state had erred allowing right not him to withdraw waiver of to his his trial counsel, and added nine other of trial In claims error. addi- importantly present purposes, tion, and most he claimed appellate that he had been denied effective assistance appellate counsel because his counsel’s Wende brief failed to comply with Anders v. at 744. S.,U. Anders California, Before filing his Wende brief, with the California consulted Project for the Second Appellate Appeal District Court and received its such a brief permission App. file 48. The Antiterrorism and Effective Penalty Death Act 110 Stat. §2254 provisions, which amended and related does to re apply ef spondent’s petition, petition habeas since he filed his before that Act’s 24, 1996. Murphy, See Lindh fective date of 521 U. S. 320 April set forth for an counsel to follow representation permission seeking to withdraw from the frivolous; that he that an would be when concludes requirement brief includes the that counsel file arguably sup- “referring anything might in the record that port appeal,” ibid. agreed con- claim, with Robbins’ last

The District Court pursuant cluding that, that there were at least two issues (in in his Anders, counsel should have raised brief Wende issues): required noted counsel is not to raise brief, above, prison library adequate whether the law was for Rob- first, preparing after he bins’ needs in his defense elected dis- proceed pro appointed at trial, his counsel and se and, miss refusing trial second, whether the court erred in to allow him to withdraw his waiver of counsel. District Court The attempt did not the likelihood that either of determine prevailed appeal. Rather, these two issues would have in an simply language pro- in the of the Anders that, concluded “might arguably” “support[ed] cedure, these issues have *9 Anders), appeal,” App. (citing n. 6 that Rob- and thus appellate including counsel, brief, bins’ them in his procedure from deviated set forth in Anders. The court per- such concluded that a deviation amounted deficient requiring addition, formance counsel. In rather than prejudice Robbins to show that he from this defi- suffered performance, applied presumption cient District a Court prejudice. App. simply finding 49. based a Thus, on appellate inadequate Anders, counsel’s brief was under grant respondent District ordered a Court California new days custody. within release or else him from Appeals The United States for the Ninth Court Circuit agreed with the on the Anders In District Court issue. together Douglas Anders, with view, Ninth Circuit’s Cali (1963), pro held must U. S. which that States fornia, appointed indigent vide counsel to on criminal defendants through ap appeal, procedure which “set forth the exclusive pass pointed performance can counsel’s constitutional mus (1998). Rejecting petitioner’s 1062, 1066 ter.” 152F. 3d ar gument complied that counsel’sbrief was sufficient it because Wende, the Ninth Circuit concluded that the brief was not, because it did deficient the Anders re identify quires, any arguably legal issues that have could supported appeal. 3d, 152 F. at 1066-1067.4 The court a did not decide whether counsel’s Anders, deviation from standing appeal, alone, would warrant new see 152 3d, F. at 1066-1067,but rather concluded that the District Court’s proper award of relief was because counsel to brief had failed arguable the two issues that the District Court identified. remanded, The Ninth Circuit for the however, District Court respondent’s to consider 11claims of trial Id., error. at 1069. prevailed any The court reasoned that if Robbins of these unnecessary claims, would be the California order Court Appeal grant appeal. granted a new direct We certio rari. 526 U. S. 1003

II A Anders, In we reviewed an earlier California handling appeals by indigents. convicted Pursuant to that procedure, appointed appellate Anders’ counsel had filed stating letter that he had concluded that there was merit “no appeal,” response, to the 386 U. Anders, at 739-740. sought Appeal new counsel; the State Court of denied the request, pro Anders filed se brief. That opinion court then issued an reviewed four claims in (or pro his se finding prejudi affirmed, brief and no error no *10 error). People cial App. v. 2d Anders, 167 Cal. 333 P. 2d 4 subsequent eases, In the Ninth Circuit has reiterated its view Wende unconstitutional because it differs from the Anders procedure Lewis, Delgado procedure. 1087, 1090, 1093, v. stay granted 181 F. 3d Kramer, cert., (1999); Davis pending pet. of v. disposition 527 U. S. 1066 494, 496, (1999), 167 F. 3d 497-498 98-1427. pending, cert. No. 270 sought

854 cor Anders thereafter a writ of habeas pus Appeal, ex relief, from the State Court of which denied plaining again that it had found had reviewed the record and “ ” appeal at Anders, to be 'without merit/ opinion). unreported (quoting 740 memorandum comport with does not We held that action “California’s required equality fair that is and lacks placed the case Id., Amendment.” at 741. We Fourteenth precedent beginning Illinois, within line of with v. Griffin (1956), continuing Douglas, supra, that 351 12 with U. S. and imposed they when constraints on States constitutional finding appellate choose to In create review.5 California compared constraints, we to have these breached procedures statutory it to other and to we had found invalid governing requirements appeals by in- in the federal courts digents supra, appointed Anders, 741-743. counsel. particular States, We relied in v. 356 U. S. Ellis United (1958) curiam), statutory (per involving 674 a case federal requirements, quoted following passage and from it: investiga-

“'If counsel is after convinced, conscientious may appeal course, he ask tion, frivolous, satisfied to withdraw on that account. If the court is possible diligently investigated that counsel has grounds agrees appeal, evaluation with counsel’s then be allowed case, leave to withdraw supra, appeal may Anders, leave be denied.’” 675). (quoting 741-742 Ellis, appellate Anders, In court on di- neither state counsel, the finding appeal, any rect nor the made state habeas courts had finding frivolity.6 We concluded that 5 not, however, The Constitution does States to create require e. Moffitt, Ross g., See, review in the first 417 U. S. place. Durston, McKane (1894)). U. (citing S. States, The same was true in Ellis Ellis v. United itself. See (CADC (“Counsel... 1957) 478, 480-481 J., F. 2d dissenting) (Washington, clearly erro- were ‘so rulings concluded that the the District Court *11 adequate, was had “no merit” not it did not mean because appeal lacking prospects was so as to be “frivo- say frivolity by “We a finding lous”: cannot that there was any either courts or that California counsel acted in greater capacity merely than as amicus curiae which was U.S., condemned in Ellis” at 743.

Having rejected proceeded, procedure, the California we separate in a final, section, to set out what would be an ac- ceptable procedure treating appeals: frivolous

“[I]f wholly counsel finds frivolous, his case to be after a conscientious examination it,of he so should advise the request permission court and to withdraw. That re- quest accompanied by must, however, be a brief refer- ring anything might arguably in the sup- record that port appeal. copy A of counsel’s brief should be indigent any furnished the time allowed him to raise points that he chooses; the court—not counsel—then proceeds, proceedings, after full examination of all the wholly to decide whether the case frivolous. If it so may grant finds it request counsel’s withdraw dis- miss the requirements insofar as federal are con- proceed or cerned, to a decision on if state merits, requires. law any so On the other hand, if it finds (and legal points arguable on their merits therefore frivolous) prior must, to decision, afford the indi- gent argue appeal.” assistance of counsel to Id., at 744.

We explaining then concluded how this would be better than the California one that we had found deficient. Among things, thought other we that it would “induce the pursue court vigorously all the more its own review be- ready only cause of the references not to the record but also neous as to Where, here, constitute . probable error.’ . . there was a fairly arguable question, counsel should have proceeded present argu- curiam). ment”), remanded, vacated and S. (per

272 legal Id., at to the authorities furnished counsel.” 745.

B Anders, final section of The ruled this Ninth Circuit that holding though case, that was unnecessary even to our upon disagree. have never obligatory the We States. We suggest otherwise; and precedents held; so we read our to contrary to our established the runs Ninth Circuit’s view bounds practice permitting within broad States, difficult experiment to solutions to Constitution, questions policy. McCoy Wis., U. S. Appeals In Dist. v. Court of (1988), rejected challenge variation we to Wisconsin’s departed from procedure.

on the Wisconsin had Anders why issue requiring to each Anders Anders briefs discuss argued this rule lacked The that raised merit. defendant contrary eth- counsel to violate his was to Anders and forced obligations emphasized that however, ical We, his client. right right appellate representation not does include present arguments court, S., frivolous to the similarly, attorney obliga- and, an ethical that an is “under ibid, (footnote prosecute appeal,” tion refuse to a frivolous omitted). merely explained, “assure the Anders, we aims to rights indigent have court that the constitutional defendant’s S., been at 442. Because Wiscon- violated.” U. procedure adequately provided assurance, sin we found such notwithstanding its variance from violation, no constitutional McCoy, de- did, Anders. See 486 at 442-444. We U. step procedure going scribe “one further” at issue as suggesting An- McCoy, supra, Anders, than thus might mandatory think this de- minimum, ders we set but scription procedure questionable, since it of the Wisconsin provided advocacy indigent at least less effective for an —in respect procedure. The Wiscon- one does the Anders —than briefing by procedure, by providing sin for one-sided against probably a court made claims, his own client’s best likely against indigent than if court had more to rule simply received an Anders brief. (1987), Pennsylvania Finley,

In we ex- 481 U. S. 551 plained independent not “an the Anders just prophylactic “a command,” constitutional but rather is framework” the constitu- that we established to vindicate right Douglas. tional counsel announced in say S.,U. did not Anders 555. We our *13 adequately only prophylactic was the framework that could making right; vindicate this clear that the Consti- instead, compel procedure, sug- tution itself does not we the Anders gested Similarly, otherwise. in 488 S. Ohio, Penson v. U. 75 (1988), erecting “safeguards.” simply we Anders as described 488 S.,U. at 80. language

It suggest- is true in that Penson we used some ing mandatory upon that States, S., Anders is see 488 U. language necessary 80-82, at but that was not to the decision we reached. We had no reason in Penson to determine mandatory, procedure whether the Anders because the was procedure clearly Douglas, at issue failed under see infra, closely Further, 280. counsel’s action in Penson was analo- gous to Anders, the action of counsel that we invalid found in rely Penson, see so 77-78, there was no need procedure, opposed just holding, the Anders the Anders (“The improper. to find counsel’saction S., See 488 U. at 77 presented question remarkably [to this case is similar presented Anders] requires one in a similar therefore answer”).

Finally, any view of the we described in the last suggestion section of that Anders converted it from a into straitjaeket practice, would contravene our established allowing discretion, rooted in federalism, wide States subject to requirements the minimum of the Fourteenth experiment prob- Amendment, to to difficult solutions (1956), policy. lems of Illinois, In 351 U. 12S. Griffin which holding we invoked as the for our foundational ease expressly we Anders, Anders, S., see 386 U. dis- any pretensions rulemaking authority

claimed for imposed indigent appeals. criminal We States in the area merely or but held unconstitutional no broad rule indigents pay requirement that a fee to receive a Illinois’ transcript bringing appeal. was essential for trial necessary provided Frankfurter, who fifth vote Justice holding emphasized that it was not for this Griffin, open indigent “to tell Illinois what means are Court may prescribe any be chosen. Illinois means must the wide area of its constitutional are within discretion” and “may protect appeals so frivolous not itself are subsi- moneys public needlessly spent.” not dized and (opinionconcurring judgment). at 24 He added that while justice,” equal could not State “bolt the door to it also was obliged “support a wasteful abuse of the process.” plurality Ibid. The shared this ex- view, Griffin plaining holding was not “that Illinois must Court *14 purchase stenographer’s every transcript a in case where a [of buy Supreme Illinois] defendant cannot it. The Court affording adequate find other means of and effective indigent review Id., to defendants.” at 20. principle context, In a related we stated this basic of feder very alism in we Term in which decided Anders. We emphatically reaffirmed that the “has never Constitution thought [to] rule-making organ been establish this as a Court promulgation procedure.” for the of state rules criminal Spencer Texas, (citing, alia, v. 385 U. S. inter supra). Medina U. Accord, S. Griffin, California, concurring Stewart, 437, 443-444, 447-448 Justice in Spencer, explained further: roving gave

“If the me Constitution a commission impose my upon the criminal courts of Texas own no- join enlightened policy, I tions of would not the Court’s opinion. question [But] [t]he pro- . . . those whether cedures fall below the minimum level the Fourteenth Upon question, I Amendment am will tolerate. join opinion judgment constrained and Court.” 385 S.,U. 569. years. principle

We have continued in recent to reiterate this Finley, accept premise (refusing U. seeking help “when State chooses to to those offer relief dictates convictions, from the Federal Constitution ibid, assume”); (explaining exact form such assistance must develop that States have and im- “substantial discretion plement post- programs prisoners seeking to to aid secure review”); Murray 1, 13 Giarratano, conviction (1989) 492 U. S. (“[N]or concurring) seem to me J., does it (O’Connor, any par- requires that the to follow Constitution States [posteonviction] proceedings. ticular federal . . model in . discretion”); [have] id., States considerable at 14 (Kennedy, (“[J]udicial concurring judgment) imposition a cate- J., in gorical remedy responsible might pretermit . solu- . . other legislatures”). being Congress tions considered state and Although Finley pro- Murray postconviction and involved counsel) (in ceedings right which there is no constitutional language appeal, rather than think, direct we as the Grif- suggests, principle same in contexts. both fin underlying For there constitu- here, was an Griffin, right tional at issue. keeping short,

In court, it is as a more with our status particularly sys our status as court in a federal imposing single tem, to avoid solution the States from procedures top should, evaluate do, down. We state *15 they Murray, supra, a time, one at us, as come before see crafting leaving challenging 14, while “the task of more appropriate procedures laboratory of the States ... Dept. Health, the first instance,” Director, v. Mo. Cruzan (citation (1990) concurring) 261, 497 U. S. 292 J., (O’Connor, omitted). quotation and internal marks will not cava We lierly “imped[e] ability as laboratories the States’ to serve testing legal problems.” for Arizona v. solutions to novel 276 (1995) dissenting). Ac

Evans, 1, 24 J., 514 S.U. (Ginsburg, merely procedure one cordingly, we hold that the Anders satisfying requirements the Constitution method of are confi indigent appeals. criminal States we and,— procedures policy, are su that, will—craft terms dent, perior good that in Anders. The Consti to, as, or at least as doing no barrier to their so.7 tution erects III Having procedure determined California’s Wende merely diverges from the An- unconstitutional because procedure, procedure ders we turn consider Wende system it clear that merits. We think California’s its own provides Amendment, the Fourteenth for it does not violate right [the] appellant pursuing appeal a first “a criminal necessary safeguards minimum make ‘ade- Lucey, quate effective,’” 387, Evitts 469 U.S. and (1985) opinion)). (quoting (plurality at 20 Griffin,

A “ ‘[t]he pre occasions, As we have admitted on numerous Douglas cases cise rationale for the lines of has Griffin being explicitly support stated, never been some derived Equal of the Fourteenth Amend from Protection Clause Due of that ment some from the Process Amend Clause ” (quoting Evitts, ment.’ Ross v. Moffitt, omitted)). (footnote our U. S. 608-609 But case practical that, as a the two matter, law reveals Clauses “affor[d] converge largely require that State’s indigent adequate appellate review to defend and effective (plurality opinion). A State’s at 20 ants,” S., U. Griffin, reasonably provides long en so as it such review have, fact, degree. See already doing this to some States been Warner, Protection is Anders Fifty Appellants’ Equal in the States: Some (1996); Ari Others’, St. U. L. Rev. 642-662 Equal More Than 23 Fla. 1999). Clark, 530, 536-539, zona (App. 196 Ariz. 2 P. 3d 95-98

277 way indigent’s appeal an in a that sures that will resolved be (plu appeal.8 id., is related to the merit of at 17-18 (state rality regulating appeals opinion) indigents’ bore law innocence”); relationship guilt “no rational to a defendant’s or (law (Frankfurter, concurring judgment) id., 22 im J., in posed “differentiations no relation to rational ... have (deci policy Douglas, appeal”); atS., of criminal U. 357 372 appeal sion of matter counsel,... first “without benefit of no [an indigent’s] be,” how out to meritorious case turn poor than discriminates between rich and rather between (internal “possibly good obviously quotation and cases” bad omitted)); Yeager, marks 305, Rinaldi 384 310 U. S. (state appellate system “free of must be unreasoned distinc (law tions”); supra, Evitts, “decided Griffin way respect arbitrary that was with issues involved”). (“The Compare Finley, equal pro supra, at 556 guarantee only... indigent assure[s] tection ... defend adequate fairly ant opportunity present an his claims appellate process” (quoting Ross, context of the State’s 616)), (“[D]ue supra, process... Evitts, at 405 [requires] opportu States ... offer eaeh defendant a fair nity adjudication appeal” to obtain an on the merits of his (discussing Douglas))9 Griffin determining particular

In whether state satis fies important underlying standard, this it is to focus on the goals should serve—to ensure that those indigents appeals whose are not frivolous the counsel receive required Douglas, merits brief and also enable course, Of g., can eliminate all risk of error. E. Walters no procedure Survivors, National (1985). Assn. Radiation 305, 473 U. S. 320-321 9 Although we have said that receive indigent must “substantial equality” compared to the legal assistance that a defendant with coun paid Wis., receive, sel would McCoy v. Court Dist. U. Appeals S. (1988), we have emphasized “[albsolute also equality required; them,” Douglas lines can be and are drawn and we often sustain v. California, 372 U. S.

278 “protect appeals to are not sub

State itself so that frivolous needlessly moneys spent,” public sidized Griffin, (Frankfurter, judgment). concurring supra, For J., at 24 right Douglas, indigents to although, generally have under equally appeal right, true that counsel on a first as of it is bring ap right right this does not the to frivolous include peal concomitantly, right to counsel and, does not include McCoy, at bringing S., 486 appeal.10 for a frivolous U. See Douglas, supra, see United States v. 436-438; at also 357; (1984)(“Of course, the Cronic, 648, n. 19 Sixth 656, 466 U. S. require [trial] is counsel do what Amendment does not unethical”); impossible Whiteside, 157, 475 U. S. or cf. Nix (no right the ef to violation of Sixth Amendment fective trial counsel refuses to assistance of counsel when duty per presenting violate client in ethical not to assist his jured indigent testimony). differently, put point an To appeal it is frivo defendant who has his dismissed because bring opportunity” deprived lous has to not been of “a fair appeal, Finley, his at Evitts, 405; S., see 481 U. require appeal full fairness does not either counsel or a properly appeal is once it is that an frivolous. determined goal prevent The this limitation on obvious of Anders was to right swallowing right it appellate counsel from McCoy, supra, self, Penson, 83-84; see U. today. goal and we from that do not retreat B procedure reasonably that an We think the ensures Wende indigent’s way appeal related to will be that is resolved indi emphasis This distinction on an gives previous to our meaning gent right whose appellant’s “advocacy.” indigent Although appellate frivolous no make his right has to have an advocate case court, cases, an attor does, right such an have the have indigent all interests, attempt his case and ney, indigent’s zealous for the evaluate 675; Ellis, Anders S., at discern nonfrivolous arguments. California, 741-743 U. S. strengths appeal. weak- its or merit Whatever say policy, fails to matter of we cannot that it nesses as a indigents adequate afford review effective requires. comparison of A Fourteenth Amendment procedures the Wende to the in our evaluated chief cases in this area makes this evident. undoubtedly

The far than those Wende better *18 inadequate. procedures itself, in dis- we have found Anders approving chiefly procedure, relied on the former California (1958) precedents: States, 674 three Ellis v. United 356 U. S. curiam), (per Eskridge Washington Bd. Prison Terms curiam), (per Paroles, 357 U. and Lane S. Brown, Anders, at 741- S., U. S. 477 See 386 U. why explain Although 743. in not, Anders, we did. in detail procedure inadequate the California each of these was under precedents, particularly heavy our Ellis makes reliance on significant pro- clear that a factor was that the old California require cedure did not either counsel or court to deter- procedure appeal mine frivolous; instead, that the was required only they was determine that the defendant unlikely prevail supra, appeal. Compare at Anders, (“ 741-742 ‘If inves- convinced, counsel is after conscientious tigation, appeal may that the course, he ask frivolous, agrees withdraw If .... the court . . . counsel’s with may evaluation of the case, then be al- leave to withdraw ” (quoting lowed and leave appeal Ellis, be denied’ (“We 675)), supra, say supra, at Anders, at 743 cannot finding frivolity”). there McCoy, was a also See supra, (quoting passage at 437 Ellis that same from we Anders). quoted problem appears in This also to have been procedures Eskridge one of the in flaws at issue in only finding Lane. The former involved a that there had grave been prejudicial trial, Anders, “‘no or errors’” at 215), supra, (quoting Eskridge, supra, at 742 and the lat- at ” finding only ter, a appeal unsuccessful,’ that the “‘would be 482). supra, (quoting supra, Wende, Anders, Lane, at at requires both counsel and the court to find contrast, say, lacking arguable appeal issues, which to frivo to be 2d, 439, 441-442, 600 1073, 1075; P. at 3d, lous. Cal. at finding (reading 2d, 600 P. at 1074 Anders id., see procedure largely “because court old deficient California express finding appeal an was itself did not make frivolous”). problem

An additional with the old California apparently permitted that it court to allow was appeal and thereafter to decide the counsel withdraw Anders, appointing without new counsel. See any point Penson, n. 2. We doubt on this where resolved we struck down that allowed counsel with- draw before court whether counsel’s had determined and, accurate, 82-83, evaluation of the ease was allowed a to decide the addition, court without arguable issues, id., if the at 83 counsel even court found (stating “[m]ost significan[t]” latter this flaw was the *19 one). procedure permitted Thus, the Penson basic a viola- Douglas right tion of the counsel is de- have until case termined to be frivolous and to receive a merits brief for (“[I]t appeal. important S., nonfrivolous 488 U. at 88 See emphasize peti- that the denial of counsel in this case left completely representation during appel- tioner without ibid, (defendant process”); late court’s actual was decisional “entirely appeal”). without assistance of counsel on Cf. McCoy, procedure supra, (approving at n. 430-431, under appeal which court first finds to be frivolous and counsel). by contrast, Under affirms, Wende, then relieves Douglas occur, violations do not both because counsel does briefing not move court orders to withdraw and because the supra, arguable if at n. Wende, it finds issues. See g., App. 2d, also, Rowland, at e. 75 Cal. 3; 600 P. n. see Rptr. 61-62, 900-901. 3d, 2d, Cal. proce- disapproved

In the old California Anders, we also one-paragraph thought letter from dure because we that a had his “bare conclusion” only stating unclear S., no at 742. It is merit was insufficient. in Anders how much our on this from our objection opinion to the lack of a find- was severable from our point objection our because we followed ing frivolity, descrip- immediately Ellis, tion of counsel's “no with a merit” letter discussion Eskridge, Lane, and and lack of such a See finding. Wende S.,U. In brief event, 742-743. any provides more than “bare conclusion.” Counsel’s one-paragraph of the case’s and factual history, summary procedural record, citations both ensures that a trained eye legal has searched the record for issues and assists the arguable court in its own ease. evaluation of the reviewing Eskridge an additional flaw with the in Finally, procedures Lane was there was one tier only review — Eskridge (who the trial in had little judge understandably incentive to find error any warranting appeal) Anders, in Lane. defender at 742-743. public Douglas The was, for the itself flawed procedure part, at 354-355. The Wende proce- same reason. See 372 U. dure, of it does not course, flaw, suffer from this provides at least two tiers of review. does the Wende

Not far exceed those only proce- dures that we have found it is invalid, but also at least com- to those we parable have Turn- procedures approved. first to the we set ing out the final section “ Anders, we note from faced has, 'con- beginning, *20 C., In re Sade sistent and severe criticism.’” 4th 13 Cal. 952, 979, 7, (1996) n. 920 2dP. 7 67 716, 731, Note, n. (quoting Texas (1988)). L. Rev. 181, 212 One of the most consistent McCoy, An- criticisms, one with which we wrestled ders is in some tension both with counsel’s ethical as an duty (which officer of court the him not to frivo- present requires lous and also with his to further his client’s arguments) duty (which interests not to his characterize might permit 282 frivolous).11 as California,

client’s claims Wende through has effort to this made procedure, mitigate prob- good-faith lem not brief raise issues legal Wende by requiring describe the case and not counsel to by requiring explicitly 2d, 3d, 441-442, as 25 at 600 P. Wende, frivolous. See Cal. at 1074-1075. has been that

Another criticism of the Anders procedure it Those is incoherent and thus to follow. making impossible this criticism to our in Anders point suggesting language that an could both frivolous” and at be appeal “wholly also issues, same time contain even we said arguable though that an issue that was “therefore not frivo was arguable Anders, lous.” In the Anders words, at 744.12 other supra, to use and frivolity procedure appears gradations adopt two different for the issue.” meanings “arguable phrase The Wende resolve this procedure attempts problem well, the line at argu by drawing by defining frivolity able issues not as those that are frivolous.13

11 attorney As one former has “an confronted public explained, defender with the Code of Profes something Anders situation has to do unethical; sional to which describes as choice is as Responsibility only prefers Cry canon he or Anders: The Pengilly, she violate.” Never Ethical Dilemma a Frivolous Criminal Appointed of Counsel to Pursue (1986). 45, also, Appeal, g., 9 Crim. J. 64 e. Commonwealth Justice See (Anders 201, 206, requires Moffett, 383 Mass. E. 2d 590 418 N. counsel); Hermann, Criminal Ap “Janus-faced Frivolous approach” peals, 47 N. Y. U. L. Rev. Stewart, Anders, make this Justice in his the first to dissent was majority: criticism of the Anders the record “[I]f set out issues, be frivolous.” present any 'arguable’ did such would not Wolfram, 746; id., also, g., U. e. C. Modem see n. See (1986) (“The if confusing, Ethics are Legal Anders directives contradictory”). been criticism of has 279-280. A further Anders that, out setting More have unjust. particularly, critics claimed re of scarce procedure, problem Anders we were oblivious to the (with courts) and, result, crafted sources as a regard both counsel and indigents a rule that from appeals diverts attention meritorious See, Pritchard, Auc- g., poor indigents. for all e. representation ensures *21 to in some be, the ways, Wende Finally, appears procedure and, in in other than the one we McCoy better approved latter, that the balance, we cannot say worse. On ways, former, do so outweigh assuming, arguendo, they the Wende unconstitutional. make sufficiently procedure in evaluated which McCoy, The Wisconsin we procedure counsel an Anders brief to filing explain why required merit, in his brief lacked exac- issues he raised arguably in the erbated ethical Anders already problem present as we The Wende have at- procedure. procedure, explained, Further, it tempts mitigate appears problem. in the scheme counsel discussed —and McCoy appellate the record court cited counsel by only parts reviewed — of the issues he raised. See 486 U. support “arguable” 440, at contrast, 442. The Wende procedure, requires more treatment of the record both thorough 3d, 440-441, 1074-1075; court. See 25 at 2d, Cal. P. id., 2d, (Clark, J., 600 P. concurring judg- tioning Justice: and Market Legal Allocating Ap Mechanisms for Criminal (Anders Counsel, (1997) pellate 1161, 1167-1168 34 Am. Crim. L. Rev. has that, created of the commons” "tragedy guaranteeing “far from adequate defendants, for all appellate representation criminal instead ensures that criminal indigent defendants will receive appellate mediocre representa (footnote tion, Pritchard, their omitted)); whether claims are or good bad” supra, Anders’ similar effect on courts); at 1169 Pritch- (noting appellate (“[J]udicial ard, merely at 1162 fiat cannot scarcity; disguises cure disease”); symptoms Doherty, Wolf! Wolf!—-The Ramifications (“[T]he L., & Frivolous 59 J. Crim. C. P. S. Appeals, people who have been un who will indigent prisoners suffer the most are the convicted; justly lawyers will while time they languish prison devote (footnote energy causes a first basis” hopeless come-first served omitted)). Wende say We cannot whether the procedure is better or Anders worse than the regard in this we (although are aware courts, of policy-based see Peo that it is as to arguments worse Williams, ple 1202, 1205-1206, 59 Cal. 4th App. Rptr. 69 Cal. 2d (1997); Brief Arabian et al. Amici Cu for Retired Justice Armand riae), that, merit, but it is clear extent holding this criticism has our the Anders today that is not exclusive will enable States to continue to experiment with solutions this problem. *22 McCoy dissenting part). hand, the

ment and in On the other procedure, the re- procedure, unlike the does assist Wende by directing particular legal viewing issues; it to as to court good thing. But it presumably a is also issues, those this is attorney selecting judgment by possible the that bad might the court’s attention from more issues to raise divert is, meritorious, unmentioned, issues. This criticism procedure. equally applicable course, to the Anders More- McCoy that does raise in a as to the issues counsel over, why briefing those are frivolous issues brief, one-sided may predispose the court to reach the same conclusion. The by omitting procedure these risks, reduces from the Wende signals subtly may independence brief undermine indigent’s thoroughness and second review of case. purpose any arguments. to resolve of these Our is not require not resolve nor does it them, The does Constitution prudent ap- address not what is or us to do so. “We only constitutionally compelled.” propriate, what but enough say Cronic, n. 38. It is U. procedure, McCoy procedures, Wende like the Anders Eskridge, Douglas, Ellis, Lane, and unlike the ones in adequate appellate Penson, affords and effective review for indigents. Thus, criminal there was no constitutional viola- simply tion this case because the Wende was used.

IV complied Since Robbins’ counsel with a valid determining indigent’s appeal frivolous, when an direct judgment pro we Circuit’s that the Wende reverse the Ninth principles adequately cedure fails to serve the constitutional we identified in Anders. But our reversal does not neces sarily mean that claim that his Robbins’ constitutionally assistance For it rendered ineffective fails. argues, appeal his be, as Robbins was not frivolous and that entitled to a merits brief rather than he was thus the District Court and the Indeed, a Wende brief. both arguable Ninth found that there were two issues on Circuit meaning “arguable appeal. issue” as used in direct The opinions below, is far from clear. The courts however, likely phrase way the unusual below most used the supporting arguably ap it in Anders—an issue we used peal though wholly even was frivolous. See 152 (discussing arguable F. issues in 3d, context re *23 (District Anders); quirements (same). App. opinion) of Court Such an issue does not warrant merits brief. But signify the courts below have used the term to issues “arguable” being that were in the more normal sense non- of warranting and thus a merits id., frivolous brief. See at (District considering arguable n. 3 Court, to de issues defining termine “whether was Anders but also violated,” arguable good as argue issue one that could “in counsel faith potential prevailing”). with some for Further, courts determining arguable below, whether there issues, were petitioner’s argument did address at that, least with re gard adequacy library, prison to the of law Robbins object appeal by failing waived the issue for at trial. clarify necessary just it Thus, will be on remand to how strong these two issues are. proper evaluating

On remand, standard Robbins’ appellate claim that neglecting counsel was ineffective in file a merits brief is that enunciated in Strickland v. Wash ington, Murray, 466 U. S. 668 See Smith U. S. 527, 535-536 (applying attorney Strickland to claim of appeal). Respondent error on must first show that his coun objectively sel was Strickland, unreasonable, S., see failing arguable 687-691, to find issues —that unreasonably is, that counsel failed to discover nonfrivolous raising issues and to file a merits brief them. If Robbins showing, succeeds in such a he then has the burden of demon strating prejudice. is, That he must show a reasonable probability that, but for his counsel’sunreasonable failure to file a prevailed appeal. merits brief, he would have on his (defendant probabil- “a id., reasonable at 694 must show ity unprofessional errors, the result that, but for counsel’s different”).14 proceeding would have been applicability actual-prejudice prong to

The of Strickland’s of ineffective assistance follows from Pen- Robbins’ claim altogether distinguished on son, where denial of counsel we prejudice, appeal, presumption from which warrants appeal, which does mere ineffective assistance counsel not. at 88-89. The defendant in Penson S., See 488 U. as we have because, discussed, faced denial counsel only an invalid state fol- 280, not was clearly but that was invalid insofar lowed, right under denied the defendant his holding Douglas, Penson see 488 88. Our U. we itself, was consistent where we said that with Strickland presume prejudice suffered an would when a defendant had “[ajctual or constructive denial assistance of counsel *24 altogether.” supra, Cronic, S., 692; U. at see also at normally apply and words, n. 25. In other while we a reliability” “strong presumption judicial proceedings of require presumption, a defendant overcome that supra, Strickland, Penson, at 696,when, as in there has been complete understandably presume a we counsel, denial of opposite, supra, see at Strickland, 692.

But where, here, as the defendant has received complied counsel who with a valid state has determining appeal whether the is frivolous, defendant’s any the State has not at time left the defendant without appeal, presume counsel on no there is reason to prejudiced. Penson, defendant has been In we worried that requiring prejudice defendant establish would leave any by protections him “without afforded Anders.” 14The "If it performance component need not be addressed first. is an claim of lack of suffi dispose ground easier of ineffectiveness on the so, be should prejudice, cient which we will often that course be expect Washington, S., at followed.” Strickland 466 U. 697. proce- followed a S., at Here, contrast, 86. U. prece- our other that is constitutional under Anders and

dure received all the area, this and Robbins therefore dents in requires. procedural protection We that Constitution proceedings is presume the result of the thus require prove presumption reliable, and we Robbins to particular Strickland, S., incorrect in his case. See 466 U. at 694.

Further, ineffective-assistance claim Robbins any categories presses does fall within the three not presume preju- in cases, Strickland, described in which we require dice rather than a defendant to demonstrate it. prejudice presume as we in a First, noted, case of denial Second, counsel. “various kinds of state interference presumption prejudice. can counsel’sassistance” warrant Id., S., see 692; Cronic, Third, and n. 25. “prejudice presumed when counsel is burdened ac- tual interest,” Strickland, conflict of al- S., U. though require such ease we do the defendant to show adversely performance, that the conflict affected his counsel’s categories ibid. applies None of these three to a case such policy Robbins’. Nor that we does reason offered in categories apply Strickland for the first two here, for it is attorney unreasonably the case if an that, chooses to fol- low a filing such as Anders or Wendeinstead of prejudice likely case-by-case brief, inquiry merits “is so prejudice into 692; not worth the cost.” 466 U. at see contrary, Cronic, at 658.15 On the most eases *25 which a pursuant defendant’s a found, has been to procedure, valid state be frivolous, to it will in fact be frivolous. apply

It is no a harder for court to Strickland in this area it is when a defendant claims that he received ineffec- than 15 (since Moreover, such “easy identify” an error counsel is neither to error) it is necessary to evaluate a ease in order defendant’s to find the Strickland, nor to the prosecution. attributable See 692.

288 appellate

tive counsel, assistance of counsel his al because though filing particular brief, a merits failed raise claim. to likely Barnes, It be 463 will easier to do In Jones v. so. (1983), appellate U. 745 S. we held that who files a counsel (and not) every merits brief need not should raise nonfrivo- among lous rather claim, but select from them in order appeal. to maximize likelihood of on Notwith success standing bring possible Barnes, it is a Strickland still particular claim claim, raise a based counsel’s failure to incompe it is but difficult to counsel was demonstrate that (CA7 1986) g., Gray See, Greer, 644, 646 tent. e. v. 800 F. 2d (“Generally, only ignored clearly stronger when are issues presented, presumption than those will of effective as overcome”). sistance of be that counsel counsel With a claim erroneously for brief, failed file a it be easier merits will satisfy defendant-appellant part the first Strick only necessary test, land for for him to show that reasonably competent attorney have found one non- would warranting frivolous issue brief, a merits rather than show ing particular clearly stronger that a nonfrivolous issue was than present. eases, issues that did how In both prejudice analysis ever, the will be the same.16 16 judges are, course, Federal of in fully assessing prejudice of capable area, this has including very sorts of daims that Robbins raised. (CA5 1992) (defendant See, e. g., Collins, Duhamel v. 955 F. 2d 967 prejudiced by sufficiency appellate challenge counsel’s failure (CA10 1995) (find- evidence); Banks v. Reynolds, 54 F. 3d 1508, 1515-1516 of Strickland test satisfied where ing parts both counsel failed (1963)); to raise Cross Brady Maryland, claim violation of U. v. S. 83 States, (CA11) United v. 1290-1291, chal- (rejecting 893 F. 2d lenge Faretta appellate counsel’s to raise claim of failure violation California, (1975), preju- U. S. 806 that there was no by determining dice), denied, cert. U. in S. 849 Since Robbins was convicted se per court, prejudice state we have no to consider whether a occasion Strickland’s approach, might be actual-prejudice requirement, lieu convictions where coun- appropriate the context of to federal challenges sel on direct appeal. was deficient to file a merits brief failing curiam) Branch, Goeke (per (distinguishing 514 U. S. *26 satisfy prongs sum, In of Robbins must both the Strick- prevail land test in order to on his claim of ineffective assist- judgment ance of counsel. The of the of Court Appeals is is reversed, and the ease remanded for further proceedings opinion. consistent with this

It so ordered. Ginsburg Justice Stevens, with whom Justice joins, dissenting. join cogent

While I without dissent Justice Souter’s qualification, separately emphasize points I write to two meandering explana- are obscured the Court’s somewhat departure sharp tion of its from settled law. despite say directly,

First, its failure so the Court has effectively overruled both Anders v. S.U. California, (1967), Second, Ohio, Penson v. 488 U. S. 75 unexplained rejection reasoning underlying its our McCoy Appeals decision Wis., v. Court Dist. (1988), U. S. 429 see ante, 272-273, illustrates the extent today’s majority’s disregard accepted precedent. for my only necessary quote make point To first it determining Court’s new whether a State’s standard for appellate procedure indigent adequate affords review defendants: long procedure provides

“A such so State’s review reasonably will be indigent’s that an ensures way resolved merit is related to the appeal.” Ante, at 276-277. procedure

The California in Anders and the Ohio reviewed inadequate reviewed in Penson—both found easily this Court—would standard. Yet have satisfied that today accepts the Court be- California’s current rules pursuant supervisory established this Court’s administer power States); system federal court from applicable constitutional rules (same). Cronic, United States 648, 665, 466 U. S. n. 38 *27 ap- “requires and court to find cause it both counsel the the But peal lacking arguable Ante, in to be issues.” 280. position heavily Anders, in relied defense of its California very requirements, e., i. “the additional fea- on those same system [State’s] the of the where the court also reads ture Respondent full Brief for in Anders v. California, record.” pp. id., 19, 23, 12-13, O. T. No. see also 30-81; “ad- however, Our Anders decision that this held, 28-29. safeguard indigent the ditional feature” was insufficient to appellant’s rights. my my experi point own

To make second draw on I shall good many lawyer judge. practicing a ence as a and as a On writing I occasions have that the of out the rea found task support opinion question a sons that of law— an initial giving my for purpose client or whether for the of advice to my judge— purpose explaining vote the as an apparent. previously a leads to conclusionthat was not Col giving leagues importance of who shared that view of the merely joined opposed announcing conclusions, reasons, opinions McCoy, and Nickols Penson, the that I authored in (CA7 1971).1 rejection Gagnon, 454 2d 467 In its casual F. reasoning McCoy, simply ignores of the this the Court portion opinion: attorney go merely requires

“Wisconsin's Rule the relying unexplained step one on an further. Instead attorney assumption or facts has discovered law completely arguments in the refute identified danger “The in favor of busy lawyer might opt or inexperienced marginal one sentence letter of an brief instead effective in an individual real, is notwithstanding typifies case the dedication that profession. If, however, supported the case must be counsel’s ultimate evaluation of might arguably ‘referring written in the record that opinion anything summary support appeal,’ discharge obligation temptation avoided, reviewing meaningful fashion provided court Nichols, omitted) (citation 2d, footnotes assistance.” 454 F. at 470 California, Anders (1967)). (quoting 386 U. S. requires brief, the Wisconsin court additional evidence diligence. requirement counsel’s This furthers require- same interests that are served the minimum pre- ments of Anders. Because counsel discover viously unrecognized aspects process of the law in the preparing explanation a written her his or conclu- requirement provides sion, discussion an additional *28 safeguard by against mistaken conclusions counsel that strongest arguments the are he or she can find frivolous. aspects Just like the rec- references to favorable of the required by may requirement Anders, ord the discussion forestall some to motions withdraw and will assist the lawyer’s passing

court in on the soundness of the conclu- McCoy, appeal sion that the atS., is frivolous.” 486 U. see 442; Penson, S., also 488 U. at 81-82. “simply putting pen paper short,

In to can often shed new light appear on open-and-shut what at be first to quite Id., issue.” at For 82, reason, n. 4. this Court say wrong requiring to that to counsel articulate reasons for its advocacy.” conclusion results in “less at Ante, effective 272.2 employed

An court that a law clerk review the transcripts indigent arguable trial appeals in all in search of reasonably error could be sure that it resolved all of had appeals way those “in a It that is related” to their merits. any- provide indigent appellant not, would however, with thing approaching representation by attorney. paid Like 2The Wende at procedure “summary issue this requires case facts,” proceedings and but not any legal does counsel to raise require Wende, People 1071, (1979); issues. 25 Cal. 3d P. 2d ante, see also at 265. This procedure plainly does serve above purpose, since it does not paper” regarding force counsel to “put pen things those most relevant to an and appeal legal Accordingly, issues. — ante, contrary assertion, 280-281, the Court’s summary at this does not improve upon by “bare rejected in conclusion” Anders —a the attorney S., an appeal is without merit. U. at 742. procedure, it violate the

California’s so-called Wende would “principle equality” was An- of substantial described McCoy part and been a of our law for decades. ders has McCoy, Anders, S., U. 438; 744. whom Justice Souter, Stevens,

Justice with Justice Breyer Ginsburg, and Justice dissenting. join, right representation is limited A defendant’s litigation, I realize by prohibition against frivolous lawyer’s obligations corresponding are odds when perfect place draw the line there is no other, each between them. But because I believe adopted People Wende, 3d 600 P. 2d 1071 25 Cal. (1979), representation with the fails to assure Constitution, I adversarial character demanded respectfully dissent.

I Although guarantees counsel the Sixth Amendment trial felony Wainwright, a 372 defendant, to see v. U. S. Gideon (1963), similarly no 335 Constitution contains freestand ing, being right appeal, unconditional to on there no counsel obligation provide appellate all, to v. review at see Ross Mof (1974). provide 600, 606 417 U. S. a State elects to fitt, When appellate so are review, however, the terms on which it does subject g., See, Illinois, to constitutional e. v. notice. Griffin (1956); Yeager, 12, S. 305, 18 Rinaldi v. 384 U. 310 S. (1985). (1966); Lucey, 469 387, Evitts v. U. S. beginning In a line exam of cases with this Court Griffin, appellate procedural principle ined schemes under justice may generally ability pay, not be conditioned on to see “[aj]bsoluteequality supra, though Ross, at 605-609. Even required,” Douglas 353, 357 is not v. 372 U. S. California, (1963), Douglas defend we held in that when state criminal right, ants as of are free to retain counsel for a first indigent appel- requires the Fourteenth Amendment1 substantially footing through placed equal lants be on a McCoy appointment expense. of counsel at the State’s (1988) Appeals Wis., 429, Court Dist. 486 U. S. of of “principle equality”). (referring to of substantial Ap- point of are here. Two services pellate counsel advocate’s examines the trial record eye, identifying appeal. weighing potential issues dispassionate legal This not but a is review mind representative, pledged interests, committed his client’s primed any ground the record attack the conviction on arguable error, reveal. If counsel’s trial review reveals prepares argues he and submits a brief on the merits and appeal. scrutiny right partisan The services, first these potential goes to the issues, record and assessment of lawyer’s obligation litigant irreducible core of the to a in an adversary system, consistently held it essential we have representation by assigned equality substantial counsel. importance paramount vigorous representation “The fol- justice.” system lows from nature of our adversarial g., See, Penson Ohio, e. Ellis v. U. S. curiam); Doug- (per United States, 356 U. S. supra, McCoy, right las, 357-358; at 438. The unqualified I has and can counsel, when defendant retained imagine no reason so when counsel has should be appointed. been briefing, right

Because the service, the second merits *30 similarly unqualified, not we address however, the issue 1The protec line of cases has in due process equal roots both Griffin J., see M. B. L. v. S. L. tion, 102, 120 (1996), have 519 U. S. but we noted that equal “[m]ost decisions this area have rested on an protection Georgia, Bearden ,” . framework . . v. S. 665 461 U. Moffitt, also appel Ross S. that to (noting right late counsel “is more under an profitably equal protection considered analysis”). right to a

today arises. The limitation the merits brief right wholly appeal, frivolous see no one a to a is that has (1967),against which 738, 742 Anders v. 386 U. S. California, lawyers. system’s judicial line is its first of defense Being of the bar are bound court, officers members appeals,” clog with frivolous motions or “not to the courts (1981); County 312, 323 see also Dodson, Polk U. S. regardless McCoy, true supra, at and this of course lawyer’s appointed given status in ease. retained or a responds problem arises when counsel The to which Anders leaving duty appeal him frivolous, views his client’s as pressing upon barred from a court.2 although may properly The rub is that refuse deny may just properly brief a issue and a court frivolous appeal, there to be some rea- leave take a frivolous needs lawyer parti- has not his sonable assurance relaxed prior refusing,3 in which the court’s san instinct case lawyer’s compensate never for the failure of review could advocacy. by simple A counsel that an has statement coupled court’s merit, no endorsement of any- gives conclusion, counsel’s no affirmative indication appellant’s arguments champi- sought has one out best or degree contemplated adversary oned cause his system. any acquire implicit per- do such Nor conclusions counsel, problem by assigned Anders addressed the as confronted theory equally it can acute when counsel is retained. It is though be unlikely to show can up practice, Paying however. clients generally expressing fire a conclusions and will often find a re lawyer unsatisfying placement arguable with a keener issues or for eye duller nose frivo matter, lous ones. As the States find it or practical too difficult resources, moneyed from their costly prevent appellants wasting own does judicial system, bringing appeals. those frivolous This mean, however, obligated to subsidize efforts States are such by indigents. assurance, is, An that he has not become what is known around “ ” Angeles Los as a Brief for Peti County ‘dumptruck.’ Reply Jail tioner 1. *31 through exposure opponent’s

suasiveness to an interested challenge. unlikely government readiness to mount a The dispute evaluation; or one does not be even test counsel’s giving possi opponent up. guard against rate an for To the bility, that counsel the advocate’s work of then, has done looking potential prod hard for there must be some issues, any unpromising ostensibly to find case reclusive merit in an process lawyer’s and some the efforts after the assess fact. judicial process A that renders constitutional error invisible is, all, after itself an Pen affront to the See Constitution. supra, son, at 81-82. respect Anders,

In we devised such a mechanism to ensure appellant’s rights. Penson, for an law- A80. yer’s request ground withdraw on the referring accompanied frivolous be “must... brief anything might arguably ap- support in the record the peal.” simply Anders, at 744. This means that partisan calling counsel must do best, his short of black flag points appeal- being white, the that come closest to lawyer’s job give the able; is to state the issues that prevail, defendant his best if chances to even the best comes up against trifling short under the rule with the court. “[T]he proceeds, court—not ,” continued, we “then counsel— after a full proceedings, examination of all the to decide whether the wholly case is frivolous.” Ibid.

Anders contemplates thus each record, two reviews of markedly of a different First comes review character. representative. the advocate, interested defendant’s job identify eye partisan His is to can best issues the spot. judicial Then comes from disinterested review judge, lawyer really questions: who asks two whether did function advocate, as a committed and whether he mis- judged legitimate appealability any In issue. review- ing assuring responsible work, advocate’s the court is gone advocacy that counsel has take him with as far as will repeatedly the best issues de- undiseounted. We have *32 296 appellate

scribed task of an court in of this dual the terms [the court] responsibility. satisfy “‘First, must itself that attorney diligent provided a the has the client with thor- might ough arguable any of the record for claim that search support appeal. Second, client’s it must determine the correctly has the is whether counsel concluded that McCoy, (quoting at Penson, S., frivolous.”’ 488 U. 83 486 442). S.,U. at require significantly more and Anders thus than Griffin conceivably appeal-

the abstract evaluation the merits of of assigned points. the able assurance that counsel Without partisan, equality done a to a has his best as his substantial lawyer expense be retained a defendant’s cannot assumed. strong- lawyer’s And without the benefit of the statement of reviewing appellate panel claims, est the act cannot as relegated inquisitorial court, but to an role. owing assuring importance

It is to the that an adversar- inquisitorial, disagree system ial, not an is at work that I today approve Court’s statement that our cases any “reasonably state that ensures that an indi- gent’s appeal way to the will be resolved in that is related appeal.” inquisi- purely merit Ante, A 276-277. system satisfy criterion, torial could and so could one appoints only if deems it court rejected explicitly useful. But we have the former and have Douglas, held the latter see unconstitutional, being 355, the reason in looks each ease that the Constitution Singer to the means well as United to the ends.4 See (1965) (“The recognizes States, 380 U. S. Constitution adversary system proper determining as the method of (“A guilt...”). g., also, Penson, e. at 87 criminal .”); advocacy appellant single-minded . . entitled to a course, constitutionally required, Of if States appellate review is not They may appellants. well be able on all nonadversarial review impose not, however, those able to afford adversary system reserve the counsel. (“The (1984) Washington,

Strickland v. 466 U. S. recognizes right to Sixth Amendment assistance playing counsel because it role that is envisions counsel’s ability just system critical to reach adversarial results”); Cronic, United States 466 U. S.

(“Thus, process protected adversarial Sixth *33 acting requires Amendment have accused ‘counsel ”) 743). (quoting Anders, in the role anof advocate’ at

I I exclusive, We have not held the details of Anders to be exemplifying but it does make to as what sense read the case equality indigent requires appellants substantial on behalf of certainty to an entitled advocate’s review and to reasonable arguable that issues-will be on their merits. With briefed thus Anders as a benchmark, California’s Wende up. primary fails to failing permitting measure Its is in mentioning pos- counsel to refrain as a matter course from sibly arguable deficiency brief; issues in its a no-merit second obliging is a correlative of the court to first, an arguable search the record for without benefit an issues issue-spotting, to 3d, no-merit brief review. at See Cal. 440-442, 600 P. at 2d, 1074-1075.

Although Wende act an assumes that counsel will advo- cate, id., see at 2d, assure, 600 P. fails to 441-442, promote, partisan even or the attention that Constitution requires. lawyer procedural While the must summarize history and factual record, of the case with citations to the nothing requires in the Wende scheme counsel to show af- firmatively, subject to that evaluation, he has made the com- mitted search for issues and the advocate’s assessment of go their appellate representation merits to the heart adversary system. say question in our begs It to “[c]ounsel’s any inability arguable may readily to find issues any,” be inferred from his failure id., to raise point argue 2d, P. and it misses the indigent appellant adequately protected because the law- assigned assigned yer counsel to a ease under California’s approval brief of a not file without scheme Wende point is the need for some affirmative and supervisor. The in the express at work, indicator that advocate has been specifically product appellate court can re- form of a that an flag requires Thus Anders best issues view.5 keeping giving counsel on his toes focus for the sake of judgment. judicial of his Wendeon the other hand review requires of conceivable issues and hence noth- no indication preserve ing specifically reviewable court bound to system’s adversary pro- more character. Wende does no advocacy right indigent’s than the no-merit letter tect the conelusory disap- Anders, or the condemned in statement proved in Penson. reasoning, relying judge’s on a like Wende deficient

On nonpartisan review to assure that a defendant suffers no *34 prejudice lawyer of at the hands a who has failed docu- partisan Exactly because ment his best effort at review. lawyer system a client is our assumes that a committed to dependable guardian the most see interest, of the client’s supra, consistently procedures rejected at 296-297, we have leaving the of determination frivolousness to court in the the Douglas, supra, instance, first see the 355-356, or to court following conelusory by counsel, Penson, declaration see by 81-82, to the court or assisted the role curiae, Ellis, of amicus 356 U. S., at 675. The defect in see procedures by these is their entire reliance on review a de- magistrate scrutiny apply partisan tached who does not paid lawyers get in the instance that defendants first a matter of course.

5Since the state claims and lawyer’s petitioner’s unrevealing by conelusory approved superior certification has been are neither here by amicus my analysis, nor there on I need not evaluate assertions Del gado assigned representation that there is no scheme uniform through State, as Amicus Curiae 8. out the see Brief for Jesus Garcia Delgado goes saying, on reliance too, It without that Wende’s seeking arguable judges to adds start from scratch issues substantially judicial While to the on shoulders. burden I of the have no need to whether this drawback Wende decide questions significance, it scheme is of constitutional raises failing certainly relying underscore the constitutional judicial scrutiny partisan analy- counsel’s uninformed justices sis. In an amicus brief in this 13 retired case, filed Supreme Appeal have or Courts of California Court pointed of the cold record out the “risk that the review [under scheme] perfunctory without the Wende will be more guidance, issue-spotting citations, associated record et al. of counsel.” Brief for Armand Arabian Justice Retired candidly represented as Amici The Curiae 5. amici have “[w]hen a California receives Wende court assigns attorney prepares a brief, it the case to a staff who analyzing possible legal memorandum all issues the case. Typically, attorney presentation the staff then makes an oral appellate panel....” responsi- Id., 6. at When bility gives of counsel is court, thrown onto the court way attorney; to a staff Wendeis could be clearer that seriously obligations respective at odds with the of counsel contemplated the courts as the Constitution.

I I I Unlike the question appropriate Court, I reach the re- respect respondent’s lief. With claim, Anders the Court *35 Appeals premised finding po- of disposition its that two tentially meritorious issues showed that Robbins had been prejudiced by the failure of to the Wende scheme result in litigation. unnecessary their I think it to invoke such find- ings, simply however, and would hold for because of Robbins provide analysis to failure as a advocate’s of issues predicate of court more, would, effect, review. I Without require the state courts to for treatment reinstate application consistent with the Anders of Griffin. normally granted

It is true, course, that relief before adequate a counsel, for want of of trial defendant assistance only lawyer’s represent to him must show not his failure (demonstrated competence the fail- with reasonable here brief), issue-spotting also a “rea- file an but ure to advocate’s probability” representation competent would sonable that Strickland, produced case, see a different in his have result assumption But the behind Strickland’s at 694. lawyer requirement a prejudice the defendant had is that representing at some him as his advocate least who was premise be when a de- level, cannot assumed whereas nothing more a Wende fendant receives the benefit of than functioning situation, a nominal counsel is brief. In Wende grasp merely helping judge to court, as friend high- purporting of the to structure record but even light supporting approach to his client’s the record’s nearest doing hope appeal. than the under less Counsel Wende (or judge’s might he is attorney) do, law clerk a staff way lawyer doing nothing advocacy. When a at all in the adopts cu- that of amicus abandons the role of advocate and rendering as- longer functioning or riae, he is no counsel meaning Amendment. See sistance within the of the Sixth missing apparently Cronic, Since the S.,U. 654-655. very ingredient analysis goes of the essence advocate’s right lawyer nothing more than of the who does counsel, being than to counsel at all file a Wende brief is closer to no Strickland, being subpar counsel under any suggestion spe This, think, I is the answer to get prejudice shown in order cific assessment of need be is a re complete relief from A absence Wende. representa right versible the constitutional violation of question end tion, when is no even there day lawyer watched world would have the smartest in the supra, at 658- being prison. Cronic, his client led off to States, We Rodriquez 659; 395 U. 327 cf. S. United he had if have fared do not ask how the defendant would

301 given been counsel, and what we should look to sort of appeal might appellant’s lawyer have if ensued had flagged points appealable that came closest to issues. equally holding result is Such consistent with our cases process complete violation of due to be when a defendant is right pur denied a to the he is entitled otherwise Peguero sue. See States, v. United 526 U. S. 23, 30-31 concurring); Rodriquez, at 330.6 (O’Connor, J., anticipated This conclusion was in which Penson, we dealt with the of violation Anders standards when counsel

was supplying allowed to without court with withdraw identify appealable prior his best effort to and weaknesses, any judicial determination that counsel had missed noth ing finding arguable appellate no issues in the record. argu subsequently The court in Penson identified thought appointment able but issues un of new counsel necessary finding any legitimately appealable after is sues recognized presumption would be losers. This Court prejudice purposes without more, for of both Strickland Chapman 386 U. Pen S. California, son, Although S., at U. the state court’s failure 85-86. appoint identifying counsel after issues made Penson an egregious advocacy case, id., at the failure conse 83, quent constructive absence of counsel was clear even point lawyer pre at which the withdrew, id., and the sumption prejudice applicable applicable then is in this case now. practical good theory

There is sense as this well as behind presumption prejudice, any requirement for to demon- prejudice judges specifically place strate often federal would highly positions calling judg- on precarious habeas in judges generally ments qualified that state are better Although this proceeding February habeas and is began therefore not governed Penalty Antiterrorism and Effective Death (1997), Act of see Lindh (AEDPA), result Murphy, 521 U. S. should no infra, be different in a post-AEDPA case. See 303.

802 help no in ana- there will have been advocate’s

make. Since lyzing appeal, and since counsel the record on the direct state constructively may formally as as well have been absent well judge any proceedings, postconviction the federal state (among things) previously looking uniden- for other would be could previously waived. One state-law issues not tified guarantee con- of inefficient and time ask a more certain suming judicial effort.7' argu only say a to word about the State’s

What remains is Teague Lane, is barred under v. ment that relief in this case (1989), application requiring of new rule of 489 U. S. 288 holdings. argu clearly prior our The law not entailed has relied on for so ment seems to Wende be California junc long any disapproval a federal at this from court novelty (resulting from the failure of ture some sort of courts earlier the federal other state defendants to reach ap objections). with The obvious answer is that Wende plication Douglas ap of standards to meritless Griffin peals subject repeated starting explanation has with been McCoy general and echoed in and Penson. Anders Once they again rules are announced do not become “new” every particular subsequently violation that occur. See (1990) (discussing ap Parks, v. 494 U. S. 491-492 Saffle (1976), plication Texas, of 262 of the rule Jurek v. 428 U. S. 7 Since Wende case is like a denial counsel, no it would make more Chap sense to the State an to demonstrate no under give option prejudice Abrahamson, (1967), or man v. Brecht v. U. California, 386 U. S. 18 S. (1993), show it under Strick than would defendant require land v. Washington, The presumption 466 U. S. 668 prejudice not, however, does defendant promise every relief California whose ap peal was dismissed as frivolous and whom the statute of limita against 2244(d)(1) (1994 III). run, ed., § tions has not see 28 U. S. C. One Supp. the Wende scheme has not supplanted submission before us claims that (1967), California, Anders U. S. California. See throughout as Amicus Curiae 9-10. Briefs that meas Brief for Jesus Garcia Delgado adumbrated in Anders would according ure to the course up standards receive standard Strickland analysis. Penry Lynaugh, (1989)). 492 U. S. 302 same The point, course, would answer under the AEDPA any objection

that an Anders was petitioner beyond seeking go “clearly Federal law, established as determined Supreme 2254(d)(1) (1994 § States,” ed., Court of the United 28 U. S. C. *38 III). Supp.

[*] ^{[*] [*]} Wende The mini- does not assure even most mal assistance of counsel in an adversarial role. The Consti- tution demands such and I would hold Robbins assurances, to an entitled them. provides