492 U.S. 1 (1989)

MURRAY, DIRECTOR, VIRGINIA DEPARTMENT OF CORRECTIONS, ET AL.
v.
GIARRATANO ET AL.

No. 88-411.

Supreme Court of United States.

Argued March 22, 1989 Decided June 23, 1989^[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

*3 Robert Q. Harris, Assistant Attorney General of Virginia, argued the cause for petitioners. With him on the briefs were Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, Stephen D. Rosenthal, Deputy Attorney General, and Francis S. Ferguson, Assistant Attorney General.

Gerald T. Zerkin argued the cause for respondents. With him on the brief were Jonathan D. Sasser and Martha A. Geer.^[*]

Robert D. Raven, Ronald J. Tabak, George H. Kendall, and Clifford D. Stromberg filed a brief for the American Bar Association as amicus curiae.

CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE WHITE, JUSTICE O'CONNOR, and JUSTICE SCALIA join.

Virginia death row inmates brought a civil rights suit against various officials of the Commonwealth of Virginia. The prisoners claimed, based on several theories, that the Constitution required that they be provided with counsel at the Commonwealth's expense for the purpose of pursuing collateral proceedings related to their convictions and sentences. The courts below ruled that appointment of counsel upon request was necessary for the prisoners to enjoy their *4 constitutional right to access to the courts in pursuit of state habeas corpus relief. We think this holding is inconsistent with our decision two Terms ago in Pennsylvania v. Finley, 481 U. S. 551 (1987), and rests on a misreading of our decision in Bounds v. Smith, 430 U. S. 817 (1977).

Joseph M. Giarratano is a Virginia prisoner under a sentence of death. He initiated this action under 42 U. S. C. § 1983, by pro se complaint in Federal District Court, against various state officials including Edward W. Murray who is the Director of the Virginia Department of Corrections. Some months later, the District Court certified a class comprising all current and future Virginia inmates awaiting execution who do not have and cannot afford counsel to pursue postconviction proceedings.^[1] The inmates asserted a number of constitutional theories for an entitlement to appointed counsel and the case was tried to the court.

After the evidence, post-trial briefs, and other memoranda, the District Court expressed "serious doubts as to the viability of many of th[e] theories." 668 F. Supp. 511, 512 (ED Va. 1986). It was, however, "satisfied that the United States Supreme Court's decision in Bounds dictates that the plaintiffs here be granted some form of relief." Ibid. The District Court noted three special "considerations" relating to death row inmates that it believed required that these inmates receive greater assistance than Bounds had outlined. It found that death row inmates had a limited amount of time to prepare their petitions, that their cases were unusually complex, and that the shadow of impending execution would interfere with their ability to do legal work. These "considerations" *5 led the court to believe that the "plaintiffs are incapable of effectively using lawbooks to raise their claims." As a result, it found that Virginia's policy of either allowing death row inmates time in the prison law library or permitting them to have lawbooks sent to their cells did "little to satisfy Virginia's obligation."^[2] 668 F. Supp., at 513. "Virginia must fulfill its duty by providing these inmates trained legal assistance." Ibid.

The District Court then evaluated the avenues by which inmates convicted of capital crimes could obtain the aid of counsel in Virginia. It found inadequate the availability of "unit attorneys" appointed by Virginia to the various penal institutions to assist inmates in incarcertion-related litigation. Id., at 514. Further, it found that "[e]ven if Virginia appointed additional institutional attorneys to service death row inmates, its duty under Bounds would not be fulfilled" because, acting "only as legal advisors," "[t]he scope of assistance these attorneys provide is simply too limited." Ibid. Along the same lines, the District Court concluded that Virginia's provisions for appointment of counsel after a petition is filed did not cure the problem.^[3] This was primarily because "the *6 timing of the appointment is a fatal defect" as the inmate "would not receive the attorney's assistance in the critical stages of developing his claims." Id., at 515.

Even together, Virginia's efforts did not afford prisoners a meaningful right of access to the courts, in the opinion of the District Court, because they did not guarantee them "the continuous assistance of counsel." Ibid. With what the District Court feared was the imminent depletion of the pool of volunteer attorneys willing to help Virginia death row inmates attack their convictions and sentences, the court felt that "[t]he stakes are simply too high for this Court not to grant, at least in part, some relief." It therefore ordered Virginia to develop a program for the appointment of counsel, upon request, to indigent death row inmates wishing to pursue habeas corpus in state court. Id., at 517. It decided, however, that the decision in Ross v. Moffitt, 417 U. S. 600 (1974), indicated that Virginia had no similar constitutional obligation to appoint counsel for the pursuit of habeas corpus in federal court. 668 F. Supp., at 516-517.

On appeal to the United States Court of Appeals for the Fourth Circuit, a divided panel reversed the District Court's judgment that the Commonwealth was constitutionally required to provide personal attorneys to represent death row inmates in state collateral proceedings. 836 F. 2d 1421 (1988). But that court, en banc, subsequently reheard the case and affirmed the District Court. 847 F. 2d 1118 (1988). The en banc court viewed as findings of fact the special "considerations" relating to death row inmates which had led the District Court to conclude that Virginia was not in compliance with the constitutional rights of access. It accepted these findings as not clearly erroneous and so affirmed the the District Court's remedial order. The en banc court did not believe the case to be controlled by Pennsylvania v. *7 Finley, 481 U. S. 551 (1987), which held that the Constitution did not require States to provide counsel in postconviction proceedings. "Finley was not a meaningful access case, nor did it address the rule enunciated in Bounds v. Smith." 847 F. 2d, at 1122. "Most significantly," thought the Fourth Circuit, "Finley did not involve the death penalty." Ibid. Four judges dissented. We granted certiorari, 488 U. S. 923 (1988), and now reverse.

In Finley we ruled that neither the Due Process Clause of the Fourteenth Amendment nor the equal protection guarantee of "meaningful access" required the State to appoint counsel for indigent prisoners seeking state postconviction relief. The Sixth and Fourteenth Amendments to the Constitution assure the right of an indigent defendant to counsel at the trial stage of a criminal proceeding, Gideon v. Wainwright, 372 U. S. 335 (1963), and an indigent defendant is similarly entitled as a matter of right to counsel for an initial appeal from the judgment and sentence of the trial court. Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). But we held in Ross v. Moffitt, supra, at 610, that the right to counsel at these earlier stages of a criminal procedure did not carry over to a discretionary appeal provided by North Carolina law from the intermediate appellate court to the Supreme Court of North Carolina. We contrasted the trial stage of a criminal proceeding, where the State by presenting witnesses and arguing to a jury attempts to strip from the defendant the presumption of innocence and convict him of a crime, with the appellate stage of such a proceeding, where the defendant needs an attorney "not as a shield to protect him against being `haled into court' by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt." 417 U. S., at 610-611.

We held in Finley that the logic of Ross v. Moffitt required the conclusion that there was no federal constitutional right *8 to counsel for indigent prisoners seeking state postconviction relief:

"Postconviction relief is even further removed from the criminal trial than is discretionary direct review. It is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature. See Fay v. Noia, 372 U. S. 391, 423-424 (1963). . . . States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U. S. 317, 323 (1976) (plurality opinion), and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the state supply a lawyer as well." 481 U. S., at 556-557.

Respondents, like the courts below, believe that Finley does not dispose of respondents' constitutional claim to appointed counsel in habeas proceedings because Finley did not involve the death penalty.^[4] They argue that, under the Eighth Amendment, "evolving standards of decency" do not permit a death sentence to be carried out while a prisoner is unrepresented. Brief for Respondents 47. In the same vein, they contend that due process requires appointed counsel in postconviction proceedings, because of the nature of the punishment and the need for accuracy. Id., at 48-49.

We have recognized on more than one occasion that the Constitution places special constraints on the procedures used to convict an accused of a capital offense and sentence him to death. See, e. g., Beck v. Alabama, 447 U. S. 625 (1980) (trial judge must give jury the option to convict of a lesser offense); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (jury must be allowed to consider all of a capital defendant's mitigating character evidence); Eddings v. Oklahoma, 455 U. S. 104 (1982) (same). The finality of the death penalty requires *9 "a greater degree of reliability" when it is imposed. Lockett, supra, at 604.

These holdings, however, have dealt with the trial stage of capital offense adjudication, where the court and jury hear testimony, receive evidence, and decide the questions of guilt and punishment. In Pulley v. Harris, 465 U. S. 37 (1984), we declined to hold that the Eighth Amendment required appellate courts to perform proportionality review of death sentences. And in Satterwhite v. Texas, 486 U. S. 249, 256 (1988), we applied the traditional appellate standard of harmless-error review set out in Chapman v. California, 386 U. S. 18 (1967), when reviewing a claim of constitutional error in a capital case.

We have similarly refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus. In Smith v. Murray, 477 U. S. 527, 538 (1986), a case involving federal habeas corpus, this Court unequivocally rejected "the suggestion that the principles [governing procedural fault] of Wainwright v. Sykes[, 433 U. S. 72 (1977),] apply differently depending on the nature of the penalty a State imposes for the violation of its criminal laws" and similarly discarded the idea that "there is anything `fundamentally unfair' about enforcing procedural default rules . . . ." Id., at 538-539. And, in Barefoot v. Estelle, 463 U. S. 880, 887 (1983), we observed that "direct appeal is the primary avenue for review of a conviction or sentence, and death penalty cases are no exception."

Finally, in Ford v. Wainwright, 477 U. S. 399 (1986), we held that the Eighth Amendment prohibited the State from executing a validly convicted and sentenced prisoner who was insane at the time of his scheduled execution. Five Justices of this Court, however, rejected the proposition that "the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital proceeding." Id., at 411-412. Justice Powell recognized that the prisoner's *10 sanity at the time of execution was "not comparable to the antecedent question of whether the petitioner should be executed at all." Id., at 425. "It follows that this Court's decisions imposing heightened procedural requirements on capital trials and sentencing proceedings do not apply in this context." Ibid. (citations omitted); id., at 429 (O'CONNOR, J., joined by WHITE, J., dissenting in part and concurring in result in part) (due process requirements minimal); id., at 434 (REHNQUIST, J., joined by Burger, C. J., dissenting) (wholly executive procedures sufficient).

We think that these cases require the conclusion that the rule of Pennsylvania v. Finley should apply no differently in capital cases than in noncapital cases. State collateral proceedings are not constitutionally required as an adjunct to the state criminal proceedings and serve a different and more limited purpose than either the trial or appeal.^[5] The additional safeguards imposed by the Eighth Amendment at the trial stage of a capital case are, we think, sufficient to assure the reliability of the process by which the death penalty is imposed. We therefore decline to read either the Eighth Amendment or the Due Process Clause to require yet another distinction between the rights of capital case defendants and those in noncapital cases.

*11 The dissent opines that the rule that it would constitutionally mandate "would result in a net benefit to Virginia." Post, at 30. But this "mother knows best" approach should play no part in traditional constitutional adjudication. Even as a matter of policy, the correctness of the dissent's view is by no means self-evident. If, as we said in Barefoot v. Estelle, supra, direct appeal is the primary avenue for review of capital cases as well as other sentences, Virginia may quite sensibly decide to concentrate the resources it devotes to providing attorneys for capital defendants at the trial and appellate stages of a capital proceeding. Capable lawyering there would mean fewer colorable claims of ineffective assistance of counsel to be litigated on collateral attack.

The Court of Appeals, as an additional basis for its holding, relied on what it perceived as a tension between the rule in Finley and the implication of our decision in Bounds v. Smith, 430 U. S. 817 (1977); we find no such tension. Whether the right of access at issue in Bounds is primarily one of due process or equal protection,^[6] in either case it rests on a constitutional theory considered in Finley. The Court held in Bounds that a prisoner's "right of access" to the courts required a State to furnish access to adequate law libraries in order that the prisoners might prepare petitions for judicial relief. Bounds, supra, at 828. But it would be a strange jurisprudence that permitted the extension of that holding to partially overrule a subsequently decided case such as Finley which held that prisoners seeking judicial relief from their sentence in state proceedings were not entitled to counsel.

It would be an even stranger jurisprudence to allow, as the dissent would, the "right of access" involved in Bounds v. Smith, supra, to partially overrule Pennsylvania v. Finley, *12 based on "factual" findings of a particular district court regarding matters such as the perceived difficulty of capital sentencing law and the general psychology of death row inmates. Treating such matters as "factual findings," presumably subject only to review under the "clearly-erroneous" standard, would permit a different constitutional rule to apply in a different State if the district judge hearing that claim reached different conclusions. Our cases involving the right to counsel have never taken this tack; they have been categorical holdings as to what the Constitution requires with respect to a particular stage of a criminal proceeding in general. See Powell v. Alabama, 287 U. S. 45 (1932); Griffin v. Illinois, 351 U. S. 12 (1956); Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Ross v. Moffitt, 417 U. S. 600 (1974); Pennsylvania v. Finley, 481 U. S. 551 (1987). Indeed, as the dissent itself points out, post, at 17, and n. 2, it was the Court's dissatisfaction with the case-by-case approach of Betts v. Brady, 316 U. S. 455 (1942), that led to the adoption of the categorical rule requiring appointed counsel for indigent felony defendants in Gideon.

There is no inconsistency whatever between the holding of Bounds and the holding in Finley; the holding of neither case squarely decides the question presented in this case. For the reasons previously stated in this opinion, we now hold that Finley applies to those inmates under sentence of death as well as to other inmates, and that holding necessarily imposes limits on Bounds.^[7]

*13 Petitioners and respondents disagree as to the practices currently in effect in Virginia state prisons with respect to death row prisoners. Respondents contend that these prisoners are denied adequate and timely access to a law library during the final weeks before the date set for their execution. If respondents are correct, the District Court on remand may remedy this situation without any need to enlarge the holding of Bounds.

The judgment of the Court of Appeals is Reversed.

JUSTICE O'CONNOR concurring.

I join in THE CHIEF JUSTICE's opinion. As his opinion demonstrates, there is nothing in the Constitution or the precedents of this Court that requires that a State provide counsel in postconviction proceedings. A postconviction proceeding is not part of the criminal process itself, but is instead a civil action designed to overturn a presumptively valid criminal judgment. Nothing in the Constitution requires the States to provide such proceedings, see Pennsylvania v. Finley, 481 U. S. 551 (1987), nor does it seem to me that the Constitution requires the States to follow any particular federal model in those proceedings. I also join in JUSTICE KENNEDY's opinion concurring in the judgment, since I do not view it as inconsistent with the principles expressed above. As JUSTICE KENNEDY observes, our decision in Bounds v. Smith, 430 U. S. 817 (1977), allows the States considerable discretion in assuring that those imprisoned in their jails obtain meaningful access to the judicial process. Beyond the requirements of Bounds, the matter is one of legislative choice based on difficult policy considerations and the allocation of scarce legal resources. Our decision today rightly leaves these issues to resolution by Congress and the state legislatures.

*14 JUSTICE KENNEDY, with whom JUSTICE O'CONNOR joins, concurring in the judgment.

It cannot be denied that collateral relief proceedings are a central part of the review process for prisoners sentenced to death. As JUSTICE STEVENS observes, a substantial proportion of these prisoners succeed in having their death sentences vacated in habeas corpus proceedings. Post, at 23-24, and n. 13. The complexity of our jurisprudence in this area, moreover, makes it unlikely that capital defendants will be able to file successful petitions for collateral relief without the assistance of persons learned in the law.

The requirement of meaningful access can be satisfied in various ways, however. This was made explicit in our decision in Bounds v. Smith, 430 U. S. 817 (1977). The intricacies and range of options are of sufficient complexity that state legislatures and prison administrators must be given "wide discretion" to select appropriate solutions. Id., at 833. Indeed, judicial imposition of a categorical remedy such as that adopted by the court below might pretermit other responsible solutions being considered in Congress and state legislatures. Assessments of the difficulties presented by collateral litigation in capital cases are now being conducted by committees of the American Bar Association and the Judicial Conference of the United States, and Congress has stated its intention to give the matter serious consideration. See 134 Cong. Rec. 33237 (1988) (providing for expedited consideration of proposals of the Judicial Conference committee).

Unlike Congress, this Court lacks the capacity to undertake the searching and comprehensive review called for in this area, for we can decide only the case before us. While Virginia has not adopted procedures for securing representation that are as far reaching and effective as those available in other States, no prisoner on death row in Virginia has been unable to obtain counsel to represent him in postconviction proceedings, and Virginia's prison system is staffed with institutional *15 lawyers to assist in preparing petitions for postconviction relief. I am not prepared to say that this scheme violates the Constitution.

On the facts and record of this case, I concur in the judgment of the Court.

JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting.

Two Terms ago this Court reaffirmed that the Fourteenth Amendment to the Federal Constitution obligates a State " `to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process.' " Pennsylvania v. Finley, 481 U. S. 551, 556 (1987) (quoting Ross v. Moffitt, 417 U. S. 600, 616 (1974)). The narrow question presented is whether that obligation includes appointment of counsel for indigent death row inmates who wish to pursue state postconviction relief. Viewing the facts in light of our precedents, we should answer that question in the affirmative.

I

The parties before us, like the Court of Appeals en banc and the District Court below, have accorded controlling importance to our decision in Bounds v. Smith, 430 U. S. 817 (1977).^[1] In that case, inmates had alleged that North Carolina *16 violated the Fourteenth Amendment by failing to provide research facilities to help them prepare habeas corpus petitions and federal civil rights complaints. Stressing "meaningful" access to the courts as a "touchstone," id., at 823, we held:

"[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Id., at 828.

Far from creating a discrete constitutional right, Bounds constitutes one part of a jurisprudence that encompasses "right-to-counsel" as well as "access-to-courts" cases. Although each case is shaped by its facts, all share a concern, based upon the Fourteenth Amendment, that accused and convicted persons be permitted to seek legal remedies without arbitrary governmental interference.

At the fountainhead of this body of law is Powell v. Alabama, 287 U. S. 45, 69 (1932), which recognized that "[e]ven the intelligent and educated layman . . . requires the guiding hand of counsel at every step in the proceedings against him." The Court reversed the convictions and death sentences of seven black men, charged with the rape of two white women, because the state court failed to designate counsel until the morning of trial. Reasoning that the "notice and hearing" guaranteed by the Due Process Clause "would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel," id., at 68-69, the Court held:

"[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether *17 requested or not, to assign counsel for him as a necessary requisite of due process of law; and that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." Id., at 71.

Particular circumstances thus defined the degree to which the Fourteenth Amendment protected petitioners in Powell against arbitrary criminal prosecution or punishment. Similarly, in Griffin v. Illinois, 351 U. S. 12, 18-19 (1956), the Court focused on "[s]tatistics show[ing] that a substantial proportion of criminal convictions are reversed by state appellate courts" in concluding that once a State allows appeals of convictions, it cannot administer its appellate process in a discriminatory fashion. Finding no rational basis for requiring appellants to pay for trial transcripts, "effectively den[ying] the poor an adequate appellate review accorded to all who have money enough to pay the costs in advance," the Court held that the Fourteenth Amendment required States to furnish transcripts to indigents. Id., at 18. Accord, Burns v. Ohio, 360 U. S. 252 (1959) ($20 fee to file appeal). The principles articulated in Griffin soon were applied to invalidate similar restraints on state postconviction review. Lane v. Brown, 372 U. S. 477 (1963) (transcript); Smith v. Bennett, 365 U. S. 708 (1961) (filing fee).

On the same day in 1963, the Court held that the Fourteenth Amendment guaranteed indigent defendants assistance of counsel both at trial, Gideon v. Wainwright, 372 U. S. 335, and on their first appeal as of right, Douglas v. California, 372 U. S. 353. Applying the Sixth Amendment's express right of counsel to the States, the Court in Gideon departed from the special circumstances analysis in favor of a categorical approach.^[2] But because of the absence *18 of a constitutional right to appeal, see McKane v. Durston, 153 U. S. 684 (1894), the Court decided Douglas by assessing the facts in light of the Fourteenth Amendment.^[3] The Court's reasons for invalidating California's appellate procedure — by which the appellate court undertook an ex parte examination of "the barren record" to determine whether an appeal merited appointment of counsel, 372 U. S., at 356 — echoed its earlier statements in Griffin:

"When an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure. . . . [T]he discrimination is not between `possibly good and obviously bad cases,' but between cases where the rich man can require the court to listen to argument of counsel before deciding on the merits, but a poor man cannot. . . . The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal." Douglas, 372 U. S., at 357-358.

In two subsequent opinions the Court rejected inmates' attempts to secure legal assistance. In Ross v. Moffitt, 417 U. S. 600 (1974), the Court held there was no right to appointment of counsel for discretionary state appeals or certiorari petitions to this Court. It later announced for the first *19 time that a State has no obligation to provide defendants with any collateral review of their convictions, and that if it does, "the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well." Pennsylvania v. Finley, 481 U. S., at 557. Although one might distinguish these opinions as having a different legal basis than the present case,^[4] it is preferable to consider them, like Powell, Griffin, Douglas, and Bounds, as applications of the Fourteenth Amendment's guarantees to particular situations. Indeed the Court reaffirmed in Ross:

"The Fourteenth Amendment . . . does require that the state appellate system be `free of unreasoned distinctions,' Rinaldi v. Yeager, 384 U. S. 305, 310 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U. S. 487 (1963). The State cannot adopt procedures which leave an indigent defendant `entirely cut off from any appeal at all,' by virtue of his indigency, Lane v. Brown, 372 U. S., at 481, or extend to such indigents merely a `meaningless ritual' while others in better economic circumstances have a `meaningful appeal.' Douglas v. California, supra, at 358. The question is not one of absolutes, but one of degrees." 417 U. S., at 612.

II

These precedents demonstrate that the appropriate question in this case is not whether there is an absolute "right to counsel" in collateral proceedings, but whether due process requires that these respondents be appointed counsel in order to pursue legal remedies. Three critical differences between Finley and this case demonstrate that even if it is *20 permissible to leave an ordinary prisoner to his own resources in collateral proceedings, it is fundamentally unfair to require an indigent death row inmate to initiate collateral review without counsel's guiding hand. I shall address each of these differences in turn.

First. These respondents, like petitioners in Powell but unlike respondent in Finley, have been condemned to die. Legislatures conferred greater access to counsel on capital defendants than on persons facing lesser punishment even in colonial times.^[5] Our First Congress required assignment of up to two attorneys to a capital defendant at the same time it initiated capital punishment;^[6] nearly a century passed before Congress provided for appointment of counsel in other contexts. See Mallard v. United States District Court,