528 U.S. 259 (2000)

SMITH, WARDEN
v.
ROBBINS

No. 98-1037.

United States Supreme Court.

Argued October 5, 1999. Decided January 19, 2000. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

*260 *261 *262 *263 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 289. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined, post, p. 292.

Carol Frederick Jorstad, Deputy Attorney General of California, argued the cause for petitioner. With her on the briefs were Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, and Donald E. De Nicola, Deputy Attorney General.

*264 Ronald J. Nessim, by appointment of the Court, 526 U. S. 1109, argued the cause for respondent. With him on the brief were Thomas R. Freeman and Elizabeth A. Newman.^[*]

Justice Thomas, delivered the opinion of the Court.

Not infrequently, an attorney appointed to represent an indigent defendant on appeal concludes that an appeal would be frivolous and requests that the appellate court allow him to withdraw or that the court dispose of the case without the filing of merits briefs. In Anders v. California, 386 U. S. 738 (1967), we held that, in order to protect indigent defendants' constitutional right to appellate counsel, courts must safeguard against the risk of granting such requests in cases where the appeal is not actually frivolous. We found inadequate California's procedure—which permitted appellate counsel to withdraw upon filing a conclusory letter stating that the appeal had "no merit" and permitted the appellate court to affirm the conviction upon reaching the same conclusion following a review of the record. We went on to set *265 forth an acceptable procedure. California has since adopted a new procedure, which departs in some respects from the one that we delineated in Anders. The question is whether that departure is fatal. We hold that it is not. The procedure we sketched in Anders is a prophylactic one; the States are free to adopt different procedures, so long as those procedures adequately safeguard a defendant's right to appellate counsel.

I

A

Under California's new procedure, established in People v. Wende, 25 Cal. 3d 436, 441-442, 600 P. 2d 1071, 1074-1075 (1979), and followed in numerous cases since then, see, e. g., People v. Rowland, 75 Cal. App. 4th 61, 63, 88 Cal. Rptr. 2d 900, 901 (1999), counsel, upon concluding that an appeal would be frivolous, files a brief with the appellate court that summarizes the procedural and factual history of the case, with citations of the record. He also attests that he has reviewed the record, explained his evaluation of the case to his client, provided the client with a copy of the brief, and informed the client of his right to file a pro se supplemental brief. He further requests that the court independently examine the record for arguable issues. Unlike under the Anders procedure, counsel following Wende neither explicitly states that his review has led him to conclude that an appeal would be frivolous (although that is considered implicit, see Wende, 25 Cal. 3d, at 441-442, 600 P. 2d, at 1075) nor requests leave to withdraw. Instead, he is silent on the merits of the case and expresses his availability to brief any issues on which the court might desire briefing. See generally id., at 438, 441-442, 600 P. 2d, at 1072, 1074-1075.

The appellate court, upon receiving a "Wende brief," must "conduct a review of the entire record," regardless of whether the defendant has filed a pro se brief. Id., at 441— 442, 600 P. 2d, at 1074-1075. The California Supreme Court *266 in Wende required such a thorough review notwithstanding a dissenting Justice's argument that it was unnecessary and exceeded the review that a court performs under Anders. See 25 Cal. 3d, at 444-445, 600 P. 2d, at 1077 (Clark, J., concurring in judgment and dissenting in part); see also id., at 444, 600 P. 2d, at 1076 ("The precise holding in Anders was that a `no merit' letter .. . `was not enough.' . . . Just what is `enough' is not clear, but the majority of the court in that case did not require an appellate court to function as cocounsel"). If the appellate court, after its review of the record pursuant to Wende, also finds the appeal to be frivolous, it may affirm. See id., at 443, 600 P. 2d, at 1076 (majority opinion). If, however, it finds an arguable (i. e., nonfrivolous) issue, it orders briefing on that issue. Id., at 442, n. 3, 600 P. 2d, at 1075, n. 3.^[1]

B

In 1990, a California state-court jury convicted respondent Lee Robbins of second-degree murder (for fatally shooting his former roommate) and of grand theft of an automobile (for stealing a truck that he used to flee the State after committing the murder). Robbins was sentenced to 17 years to life. He elected to represent himself at trial, but on appeal *267 he received appointed counsel. His appointed counsel, concluding that an appeal would be frivolous, filed with the California Court of Appeal a brief that complied with the Wende procedure.^[2] Robbins also availed himself of his right under Wende to file a pro se supplemental brief, filing a brief in which he contended that there was insufficient evidence to support his conviction and that the prosecutor violated Brady v. Maryland, 373 U. S. 83 (1963), by failing to disclose exculpatory evidence.

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

After exhausting state postconviction remedies, Robbins filed in the United States District Court for the Central District of California the instant petition for a writ of habeas corpus pursuant to 28 U. S. C. § 2254.^[3] Robbins renewed his Brady claim, argued that the state trial court had erred by not allowing him to withdraw his waiver of his right to trial counsel, and added nine other claims of trial error. In addition, and most importantly for present purposes, he claimed that he had been denied effective assistance of appellate counsel because his appellate counsel's Wende brief failed to comply with Anders v. California, 386 U. S., at 744. Anders *268 set forth a procedure for an appellate counsel to follow in seeking permission to withdraw from the representation when he concludes that an appeal would be frivolous; that procedure includes the requirement that counsel file a brief "referring to anything in the record that might arguably support the appeal," ibid.

The District Court agreed with Robbins' last claim, concluding that there were at least two issues that, pursuant to Anders, counsel should have raised in his brief (in a Wende brief, as noted above, counsel is not required to raise issues): first, whether the prison law library was adequate for Robbins' needs in preparing his defense after he elected to dismiss his appointed counsel and proceed pro se at trial, and, second, whether the trial court erred in refusing to allow him to withdraw his waiver of counsel. The District Court did not attempt to determine the likelihood that either of these two issues would have prevailed in an appeal. Rather, it simply concluded that, in the language of the Anders procedure, these issues "might arguably" have "support[ed] the appeal," App. 51, n. 6 (citing Anders ), and thus that Robbins' appellate counsel, by not including them in his brief, deviated from the procedure set forth in Anders. The court concluded that such a deviation amounted to deficient performance by counsel. In addition, rather than requiring Robbins to show that he suffered prejudice from this deficient performance, the District Court applied a presumption of prejudice. App. 49. Thus, based simply on a finding that appellate counsel's brief was inadequate under Anders, the District Court ordered California to grant respondent a new appeal within 30 days or else release him from custody.

The United States Court of Appeals for the Ninth Circuit agreed with the District Court on the Anders issue. In the Ninth Circuit's view, Anders, together with Douglas v. California, 372 U. S. 353 (1963), which held that States must provide appointed counsel to indigent criminal defendants on appeal, "set forth the exclusive procedure through which appointed *269 counsel's performance can pass constitutional muster." 152 F. 3d 1062, 1066 (1998). Rejecting petitioner's argument that counsel's brief was sufficient because it complied with Wende, the Ninth Circuit concluded that the brief was deficient because it did not, as the Anders procedure requires, identify any legal issues that arguably could have supported the appeal. 152 F. 3d, at 1066-1067.^[4] The court did not decide whether a counsel's deviation from Anders, standing alone, would warrant a new appeal, see 152 F. 3d, at 1066-1067, but rather concluded that the District Court's award of relief was proper because counsel had failed to brief the two arguable issues that the District Court identified. The Ninth Circuit remanded, however, for the District Court to consider respondent's 11 claims of trial error. Id., at 1069. The court reasoned that if Robbins prevailed on any of these claims, it would be unnecessary to order the California Court of Appeal to grant a new direct appeal. We granted certiorari. 526 U. S. 1003 (1999).

II

A

In Anders, we reviewed an earlier California procedure for handling appeals by convicted indigents. Pursuant to that procedure, Anders' appointed appellate counsel had filed a letter stating that he had concluded that there was "no merit to the appeal," 386 U. S., at 739-740. Anders, in response, sought new counsel; the State Court of Appeal denied the request, and Anders filed a pro se appellate brief. That court then issued an opinion that reviewed the four claims in his pro se brief and affirmed, finding no error (or no prejudicial error). People v. Anders, 167 Cal. App. 2d 65, 333 P. 2d *270 854 (1959). Anders thereafter sought a writ of habeas corpus from the State Court of Appeal, which denied relief, explaining that it had again reviewed the record and had found the appeal to be "`without merit.' " Anders, 386 U. S., at 740 (quoting unreported memorandum opinion).

We held that "California's action does not comport with fair procedure and lacks that equality that is required by the Fourteenth Amendment." Id., at 741. We placed the case within a line of precedent beginning with Griffin v. Illinois, 351 U. S. 12 (1956), and continuing with Douglas, supra, that imposed constitutional constraints on States when they choose to create appellate review.^[5] In finding the California procedure to have breached these constraints, we compared it to other procedures we had found invalid and to statutory requirements in the federal courts governing appeals by indigents with appointed counsel. Anders, supra, at 741-743. We relied in particular on Ellis v. United States, 356 U. S. 674 (1958) (per curiam), a case involving federal statutory requirements, and quoted the following passage from it:

"`If counsel is convinced, after conscientious investigation, that the appeal is frivolous, of course, he may ask to withdraw on that account. If the court is satisfied that counsel has diligently investigated the possible grounds of appeal, and agrees with counsel's evaluation of the case, then leave to withdraw may be allowed and leave to appeal may be denied.' " Anders, supra, at 741-742 (quoting Ellis, supra, at 675).

In Anders, neither counsel, the state appellate court on direct appeal, nor the state habeas courts had made any finding of frivolity.^[6] We concluded that a finding that the appeal *271 had "no merit" was not adequate, because it did not mean that the appeal was so lacking in prospects as to be "frivolous": "We cannot say that there was a finding of frivolity by either of the California courts or that counsel acted in any greater capacity than merely as amicus curiae which was condemned in Ellis. " 386 U. S., at 743.

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

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

We then concluded by explaining how this procedure would be better than the California one that we had found deficient. Among other things, we thought that it would "induce the court to pursue all the more vigorously its own review because of the ready references not only to the record but also *272 to the legal authorities as furnished it by counsel." Id., at 745.

B

The Ninth Circuit ruled that this final section of Anders, even though unnecessary to our holding in that case, was obligatory upon the States. We disagree. We have never so held; we read our precedents to suggest otherwise; and the Ninth Circuit's view runs contrary to our established practice of permitting the States, within the broad bounds of the Constitution, to experiment with solutions to difficult questions of policy.

In McCoy v. Court of Appeals of Wis., Dist. 1, 486 U. S. 429 (1988), we rejected a challenge to Wisconsin's variation on the Anders procedure. Wisconsin had departed from Anders by requiring Anders briefs to discuss why each issue raised lacked merit. The defendant argued that this rule was contrary to Anders and forced counsel to violate his ethical obligations to his client. We, however, emphasized that the right to appellate representation does not include a right to present frivolous arguments to the court, 486 U. S., at 436, and, similarly, that an attorney is "under an ethical obligation to refuse to prosecute a frivolous appeal," ibid. (footnote omitted). Anders, we explained, merely aims to "assure the court that the indigent defendant's constitutional rights have not been violated." 486 U. S., at 442. Because the Wisconsin procedure adequately provided such assurance, we found no constitutional violation, notwithstanding its variance from Anders. See 486 U. S., at 442-444. We did, in McCoy, describe the procedure at issue as going "one step further" than Anders, McCoy, supra, at 442, thus suggesting that Anders might set a mandatory minimum, but we think this description of the Wisconsin procedure questionable, since it provided less effective advocacy for an indigent—in at least one respect—than does the Anders procedure. The Wisconsin procedure, by providing for one-sided briefing by counsel against his own client's best claims, probably made a court *273 more likely to rule against the indigent than if the court had simply received an Anders brief.

In Pennsylvania v. Finley, 481 U. S. 551 (1987), we explained that the Anders procedure is not "an independent constitutional command," but rather is just "a prophylactic framework" that we established to vindicate the constitutional right to appellate counsel announced in Douglas. 481 U. S., at 555. We did not say that our Anders procedure was the only prophylactic framework that could adequately vindicate this right; instead, by making clear that the Constitution itself does not compel the Anders procedure, we suggested otherwise. Similarly, in Penson v. Ohio, 488 U. S. 75 (1988), we described Anders as simply erecting "safeguards." 488 U. S., at 80.

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

Finally, any view of the procedure we described in the last section of Anders that converted it from a suggestion into a straitjacket would contravene our established practice, rooted in federalism, of allowing the States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult problems of policy. In Griffin v. Illinois, 351 U. S. 12 (1956), which we invoked as the foundational case for our holding *274 in Anders, see Anders, 386 U. S., at 741, we expressly disclaimed any pretensions to rulemaking authority for the States in the area of indigent criminal appeals. We imposed no broad rule or procedure but merely held unconstitutional Illinois' requirement that indigents pay a fee to receive a trial transcript that was essential for bringing an appeal. Justice Frankfurter, who provided the necessary fifth vote for the holding in Griffin, emphasized that it was not for this Court "to tell Illinois what means are open to the indigent and must be chosen. Illinois may prescribe any means that are within the wide area of its constitutional discretion" and "may protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent." 351 U. S., at 24 (opinion concurring in judgment). He added that while a State could not "bolt the door to equal justice," it also was not obliged to "support a wasteful abuse of the appellate process." Ibid. The Griffin plurality shared this view, explaining that the Court was not holding "that Illinois must purchase a stenographer's transcript in every case where a defendant cannot buy it. The Supreme Court [of Illinois] may find other means of affording adequate and effective appellate review to indigent defendants." Id., at 20.

In a related context, we stated this basic principle of federalism in the very Term in which we decided Anders. We emphatically reaffirmed that the Constitution "has never been thought [to] establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure." Spencer v. Texas, 385 U. S. 554, 564 (1967) (citing, inter alia, Griffin, supra ). Accord, Medina v. California, 505 U. S. 437, 443-444, 447-448 (1992). Justice Stewart, concurring in Spencer, explained further:

"If the Constitution gave me a roving commission to impose upon the criminal courts of Texas my own notions of enlightened policy, I would not join the Court's opinion. . . . [But] [t]he question is whether those procedures fall below the minimum level the Fourteenth

*275 Amendment will tolerate. Upon that question, I am constrained to join the opinion and judgment of the Court." 385 U. S., at 569.

We have continued to reiterate this principle in recent years. See Finley, 481 U. S., at 559 (refusing to accept the premise that "when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume"); ibid. (explaining that States have "substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review"); Murray v. Giarratano, 492 U. S. 1, 13 (1989) (O'Connor, J., concurring) ("[N]or does it seem to me that the Constitution requires the States to follow any particular federal model in [postconviction] proceedings. . . . States [have] considerable discretion"); id., at 14 (Kennedy, J., concurring in judgment) ("[J]udicial imposition of a categorical remedy . . . might pretermit other responsible solutions being considered in Congress and state legislatures"). Although Finley and Murray involved postconviction proceedings (in which there is no constitutional right to counsel) rather than direct appeal, we think, as the language of Griffin suggests, that the principle is the same in both contexts. For in Griffin, as here, there was an underlying constitutional right at issue.

In short, it is more in keeping with our status as a court, and particularly with our status as a court in a federal system, to avoid imposing a single solution on the States from the top down. We should, and do, evaluate state procedures one at a time, as they come before us, see Murray, supra, at 14, while leaving "the more challenging task of crafting appropriate procedures . . . to the laboratory of the States in the first instance," Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 292 (1990) (O'Connor, J., concurring) (citation and internal quotation marks omitted). We will not cavalierly "imped[e] the States' ability to serve as laboratories for testing solutions to novel legal problems." Arizona v. *276 Evans, 514 U. S. 1, 24 (1995) (Ginsburg, J., dissenting). Accordingly, we hold that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may—and, we are confident, will—craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders. The Constitution erects no barrier to their doing so.^[7]

III

Having determined that California's Wende procedure is not unconstitutional merely because it diverges from the Anders procedure, we turn to consider the Wende procedure on its own merits. We think it clear that California's system does not violate the Fourteenth Amendment, for it provides "a criminal appellant pursuing a first appeal as of right [the] minimum safeguards necessary to make that appeal `adequate and effective,'" Evitts v. Lucey, 469 U. S. 387, 392 (1985) (quoting Griffin, 351 U. S., at 20 (plurality opinion)).

A

As we have admitted on numerous occasions, "`[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment and some from the Due Process Clause of that Amendment.' " Evitts, supra, at 403 (quoting Ross v. Moffitt, 417 U. S. 600, 608-609 (1974) (footnote omitted)). But our case law reveals that, as a practical matter, the two Clauses largely converge to require that a State's procedure "affor[d] adequate and effective appellate review to indigent defendants," Griffin, 351 U. S., at 20 (plurality opinion). A State's procedure provides such review so long as it reasonably ensures *277 that an indigent's appeal will be resolved in a way that is related to the merit of that appeal.^[8] See id., at 17-18 (plurality opinion) (state law regulating indigents' appeals bore "no rational relationship to a defendant's guilt or innocence"); id., at 22 (Frankfurter, J., concurring in judgment) (law imposed "differentiations . . . that have no relation to a rational policy of criminal appeal"); Douglas, 372 U. S., at 357 (decision of first appeal "without benefit of counsel, . . . no matter how meritorious [an indigent's] case may turn out to be," discriminates between rich and poor rather than between "possibly good and obviously bad cases" (internal quotation marks omitted)); Rinaldi v. Yeager, 384 U. S. 305, 310 (1966) (state appellate system must be "free of unreasoned distinctions"); Evitts, supra, at 404 (law in Griffin "decided the appeal in a way that was arbitrary with respect to the issues involved"). Compare Finley, supra, at 556 ("The equal protection guarantee . . . only . . . assure[s] the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process" (quoting Ross, supra, at 616)), with Evitts, supra, at 405 ("[D]ue process . . . [requires] States . . . to offer each defendant a fair opportunity to obtain an adjudication on the merits of his appeal" (discussing Griffin and Douglas )).^[9]

In determining whether a particular state procedure satisfies this standard, it is important to focus on the underlying goals that the procedure should serve—to ensure that those indigents whose appeals are not frivolous receive the counsel and merits brief required by Douglas, and also to enable the *278 State to "protect itself so that frivolous appeals are not subsidized and public moneys not needlessly spent," Griffin, supra, at 24 (Frankfurter, J., concurring in judgment). For although, under