smith warden robbins argued october decided january attorney appointed represent indigent defendant appeal may conclude appeal frivolous request appellate allow withdraw dispose case without filing merits briefs anders california found order protect defendant constitutional right appellate counsel courts must safeguard risk granting requests appeal actually frivolous found california procedure evaluating requests inadequate set forth acceptable procedure california adopted new procedure people wende cal unlike anders procedure counsel wende neither explicitly review led conclude appeal frivolous requests withdraw instead silent merits case offers brief issues direction california jury convicted respondent robbins murder grand theft appointed counsel appeal concluded appeal frivolous filed state appeal brief complied wende procedure agreeing counsel assessment appeal affirmed california denied review exhausting state postconviction remedies robbins sought federal habeas relief arguing inter alia denied effective assistance appellate counsel counsel wende brief comply anders requirement brief refer anything record might arguably support appeal district agreed concluding least two issues might arguably supported robbins appeal finding counsel failure include brief deviated anders procedure thus amounted deficient performance counsel rather requiring robbins prove prejudice deficiency applied presumption prejudice ninth circuit agreed concluding anders together douglas california held must provide appointed counsel indigent criminal defendants appeal set forth exclusive procedure appointed counsel performance constitutional counsel brief failed comply procedure however remanded case district consider trial errors raised robbins held anders procedure one method satisfying constitution requirements indigent criminal appeals free adopt different procedures long procedures adequately safeguard defendant right appellate counsel pp finding california procedure issue anders permitted appellate counsel withdraw upon filing conclusory letter stating appeal merit permitted appellate affirm conviction upon reaching conclusion following review record comport fair procedure lacked equality fourteenth amendment requires placed case within line precedent beginning griffin illinois continuing douglas california imposed constitutional constraints choosing create appellate review comparing california procedure procedures found invalid statutory requirements federal courts governing appeals indigents appointed counsel concluded finding appeal merit inadequate mean appeal lacking prospects frivolous final separate section set acceptable procedure treating frivolous appeals pp ninth circuit erred finding anders final section though unnecessary holding case obligatory upon never held precedents suggest otherwise ninth circuit view runs contrary established practice mccoy appeals dist rejected challenge wisconsin variation anders procedure even though variation least one respect provided less effective advocacy indigent pennsylvania finley explained anders procedure independent constitutional command rather prophylactic framework say framework adequately vindicate right appellate counsel announced douglas similarly penson ohio described anders simply erecting safeguards finally view procedure described anders last section converted suggestion straitjacket contravene established practice allowing wide discretion subject minimum requirements fourteenth amendment experiment solutions difficult policy problems see griffin supra status particularly federal system avoids imposing single solution top instead evaluates state procedures one time leaving challenging task crafting appropriate procedures laboratory first instance cruzan director mo dept health concurring pp california wende procedure violate fourteenth amendment pp precise rationale griffin douglas line cases never explicitly stated case law reveals equal protection due process clauses fourteenth amendment largely converge require state procedure afford adequate effective appellate review indigent defendants griffin supra plurality opinion state procedure provides review long reasonably ensures indigent appeal resolved way related merit appeal determining whether particular procedure satisfies standard important focus underlying goals procedure serve ensure indigents whose appeals frivolous receive counsel merits brief required douglas also enable state protect frivolous appeals subsidized public moneys needlessly spent griffin supra frankfurter concurring judgment indigent right counsel direct appeal include right bring frivolous appeal concomitantly include right counsel bringing frivolous appeal anders obvious goal prevent limitation right appellate counsel swallowing right retreat goal pp wende procedure reasonably ensures indigent appeal resolved way related appeal merit comparison procedure evaluated chief cases demonstrates affords indigents adequate effective appellate review required fourteenth amendment wende procedure undoubtedly far better procedures found inadequate significant fact finding old california procedure inadequate anders also finding inadequate procedures reviewed eskridge washington bd prison terms paroles lane brown two precedents anders relied procedures required determination defendant unlikely prevail appeal appeal frivolous wende contrast requires counsel find appeal lacking arguable issues frivolous additional problem old california procedure apparently permitted appellate allow counsel withdraw decide appeal without appointing new counsel procedure struck penson ohio permitted basic violation douglas right counsel case determined frivolous receive merits brief nonfrivolous appeal wende contrast douglas violations occur counsel move withdraw orders briefing finds arguable issues procedure disapproved anders also required counsel file bare conclusion appeal merit wende requires counsel provide summary case procedural factual history citations record order ensure trained legal eye searched record arguable issues assist reviewing evaluation finally providing least two tiers review wende procedure avoids additional flaw found eskridge lane douglas procedures one tier pp wende procedure also least comparable procedures approved neither requiring wende brief raise legal issues requiring counsel explicitly describe case frivolous california made effort mitigate one problems critics found anders namely requirement counsel violate ethical duty officer presenting frivolous arguments well duty client interests characterizing client claims frivolous wende also attempts resolve another anders problem apparently adopts gradations frivolity uses two different meanings phrase arguable issue drawing line frivolity defining arguable issues frivolous finally wende procedure appears ways better one approved mccoy ways worse balance say latter assuming arguendo outweigh former sufficiently make wende procedure unconstitutional purpose constitution resolve arguments addresses prudent appropriate constitutionally compelled cronic enough say wende procedure like anders mccoy procedures unlike ones douglas penson affords adequate effective appellate review criminal indigents pp case remanded ninth circuit evaluate robbins claim may appeal frivolous thus entitled merits brief district ninth circuit found two arguable issues direct appeal unclear used phrase arguable issues therefore necessary clarify strong issues proper standard evaluating robbins claim remand enunciated strickland washington must first show counsel objectively unreasonable failing find arguable issues appeal robbins succeeds showing burden demonstrating prejudice must satisfy prongs strickland test prevail claim warrant presumption prejudice received appellate counsel complied valid state procedure determining whether appeal frivolous state left without counsel appeal thus presumed result proceedings reliable robbins must prove presumption incorrect claim fall within three categories cases prejudice presumed involve complete denial counsel appeal state interference counsel assistance actual conflict interest counsel part pp reversed remanded homas delivered opinion rehnquist scalia kennedy joined stevens filed dissenting opinion ginsburg joined souter filed dissenting opinion stevens ginsburg breyer joined george smith warden petitioner lee robbins writ certiorari appeals ninth circuit january justice thomas delivered opinion infrequently attorney appointed represent indigent defendant appeal concludes appeal frivolous requests appellate allow withdraw dispose case without filing merits briefs anders california held order protect indigent defendants constitutional right appellate counsel courts must safeguard risk granting requests cases appeal actually frivolous found inadequate california procedure permitted appellate counsel withdraw upon filing conclusory letter stating appeal merit permitted appellate affirm conviction upon reaching conclusion following review record went set forth acceptable procedure california since adopted new procedure departs respects one delineated anders question whether departure fatal hold procedure sketched anders prophylactic one free adopt different procedures long procedures adequately safeguard defendant right appellate counsel california new procedure established people wende cal followed numerous cases since see people rowland cal app cal rptr counsel upon concluding appeal frivolous files brief appellate summarizes procedural factual history case citations record also attests reviewed record explained evaluation case client provided client copy brief informed client right file pro se supplemental brief requests independently examine record arguable issues unlike anders procedure counsel following wende neither explicitly review led conclude appeal frivolous although considered implicit see wende cal requests leave withdraw instead silent merits case expresses availability brief issues might desire briefing see generally id appellate upon receiving wende brief must conduct review entire record regardless whether defendant filed pro se brief id california wende required thorough review notwithstanding dissenting justice argument unnecessary exceeded review performs anders see cal clark concurring judgment dissenting part see also id precise holding anders merit letter enough enough clear majority case require appellate function cocounsel appellate review record pursuant wende also finds appeal frivolous may affirm see id majority opinion however finds arguable nonfrivolous issue orders briefing issue id california jury convicted respondent lee robbins murder fatally shooting former roommate grand theft automobile stealing truck used flee state committing murder robbins sentenced years life elected represent trial appeal received appointed counsel appointed counsel concluding appeal frivolous filed california appeal brief complied wende procedure robbins also availed right wende file pro se supplemental brief filing brief contended insufficient evidence support conviction prosecutor violated brady maryland failing disclose exculpatory evidence california appeal agreeing counsel assessment case affirmed explained examined entire record result concluded counsel fully complied responsibilities wende arguable issues exist app added two issues robbins raised supplemental brief support record ibid california denied robbins petition review exhausting state postconviction remedies robbins filed district central district california instant petition writ habeas corpus pursuant robbins renewed brady claim argued state trial erred allowing withdraw waiver right trial counsel added nine claims trial error addition importantly present purposes claimed denied effective assistance appellate counsel appellate counsel wende brief failed comply anders california anders set forth procedure appellate counsel follow seeking permission withdraw representation concludes appeal frivolous procedure includes requirement counsel file brief referring anything record might arguably support appeal ibid district agreed robbins last claim concluding least two issues pursuant anders counsel raised brief wende brief noted counsel required raise issues first whether prison law library adequate robbins needs preparing defense elected dismiss appointed counsel proceed pro se trial second whether trial erred refusing allow withdraw waiver counsel district attempt determine likelihood either two issues prevailed appeal rather simply concluded language anders procedure issues might arguably support ed appeal app citing anders thus robbins appellate counsel including brief deviated procedure set forth anders concluded deviation amounted deficient performance counsel addition rather requiring robbins show suffered prejudice deficient performance district applied presumption prejudice app thus based simply finding appellate counsel brief inadequate anders district ordered california grant respondent new appeal within days else release custody appeals ninth circuit agreed district anders issue ninth circuit view anders together douglas california held must provide appointed counsel indigent criminal defendants appeal set forth exclusive procedure appointed counsel performance pass constitutional muster rejecting petitioner argument counsel brief sufficient complied wende ninth circuit concluded brief deficient anders procedure requires identify legal issues arguably supported appeal decide whether counsel deviation anders standing alone warrant new appeal see rather concluded district award relief proper counsel failed brief two arguable issues district identified ninth circuit remanded however district consider respondent claims trial error id reasoned robbins prevailed claims unnecessary order california appeal grant new direct appeal granted certiorari ii anders reviewed earlier california procedure handling appeals convicted indigents pursuant procedure anders appointed appellate counsel filed letter stating concluded merit appeal anders anders response sought new counsel state appeal denied request anders filed pro se appellate brief issued opinion reviewed four claims pro se brief affirmed finding error prejudicial error people anders cal app anders thereafter sought writ habeas corpus state appeal denied relief explaining reviewed record found appeal without merit anders quoting unreported memorandum opinion held california action comport fair procedure lacks equality required fourteenth amendment placed case within line precedent beginning griffin illinois continuing douglas supra imposed constitutional constraints choose create appellate review finding california procedure breached constraints compared procedures found invalid statutory requirements federal courts governing appeals indigents appointed counsel anders supra relied particular ellis per curiam case involving federal statutory requirements quoted following passage counsel convinced conscientious investigation appeal frivolous course may ask withdraw account satisfied counsel diligently investigated possible grounds appeal agrees counsel evaluation case leave withdraw may allowed leave appeal may denied anders supra quoting ellis supra anders neither counsel state appellate direct appeal state habeas courts made finding frivolity concluded finding appeal merit adequate mean appeal lacking prospects frivolous say finding frivolity either california courts counsel acted greater capacity merely amicus curiae condemned ellis rejected california procedure proceeded final separate section set acceptable procedure treating frivolous appeals counsel finds case wholly frivolous conscientious examination advise request permission withdraw request must however accompanied brief referring anything record might arguably support appeal copy counsel brief furnished indigent time allowed raise points chooses counsel proceeds full examination proceedings decide whether case wholly frivolous finds may grant counsel request withdraw dismiss appeal insofar federal requirements concerned proceed decision merits state law requires hand finds legal points arguable merits therefore frivolous must prior decision afford indigent assistance counsel argue appeal id concluded explaining procedure better california one found deficient among things thought induce pursue vigorously review ready references record also legal authorities furnished counsel ninth circuit ruled final section anders even though unnecessary holding case obligatory upon disagree never held read precedents suggest otherwise ninth circuit view runs contrary established practice permitting within broad bounds constitution experiment solutions difficult questions policy mccoy appeals dist rejected challenge wisconsin variation anders procedure wisconsin departed anders requiring anders briefs discuss issue raised lacked merit defendant argued rule contrary anders forced counsel violate ethical obligations client however emphasized right appellate representation include right present frivolous arguments similarly attorney ethical obligation refuse prosecute frivolous appeal ibid omitted anders explained merely aims assure indigent defendant constitutional rights violated wisconsin procedure adequately provided assurance found constitutional violation notwithstanding variance anders see mccoy describe procedure issue going one step anders mccoy supra thus suggesting anders might set mandatory minimum think description wisconsin procedure questionable since provided less effective advocacy indigent least one respect anders procedure wisconsin procedure providing briefing counsel client best claims probably made likely rule indigent simply received anders brief pennsylvania finley explained anders procedure independent constitutional command rather prophylactic framework established vindicate constitutional right appellate counsel announced douglas say anders procedure prophylactic framework adequately vindicate right instead making clear constitution compel anders procedure suggested otherwise similarly penson ohio described anders simply erecting safeguards true penson used language suggesting anders mandatory upon see language necessary decision reached reason penson determine whether anders procedure mandatory procedure issue clearly failed douglas see infra counsel action penson closely analogous action counsel found invalid anders see penson supra need rely anders procedure opposed anders holding find counsel action improper see question presented case remarkably similar one presented anders therefore requires similar answer finally view procedure described last section anders converted suggestion straitjacket contravene established practice rooted federalism allowing wide discretion subject minimum requirements fourteenth amendment experiment solutions difficult problems policy griffin illinois invoked foundational case holding anders see anders expressly disclaimed pretensions rulemaking authority area indigent criminal appeals imposed broad rule procedure merely held unconstitutional illinois requirement indigents pay fee receive trial transcript essential bringing appeal justice frankfurter provided necessary fifth vote holding griffin emphasized tell illinois means open indigent must chosen illinois may prescribe means within wide area constitutional discretion may protect frivolous appeals subsidized public moneys needlessly spent griffin opinion concurring judgment added state bolt door equal justice also obliged support wasteful abuse appellate process ibid griffin plurality shared view explaining holding illinois must purchase stenographer transcript every case defendant buy illinois may find means affording adequate effective appellate review indigent defendants id related context stated basic principle federalism term decided anders emphatically reaffirmed constitution never thought establish organ promulgation state rules criminal procedure spencer texas citing inter alia griffin supra accord medina california justice stewart concurring spencer explained constitution gave roving commission impose upon criminal courts texas notions enlightened policy join opinion question whether procedures fall minimum level fourteenth amendment tolerate upon question constrained join opinion judgment concurring opinion continued reiterate principle recent years see finley refusing accept premise state chooses offer help seeking relief convictions federal constitution dictates exact form assistance must assume ibid explaining substantial discretion develop implement programs aid prisoners seeking secure postconviction review murray giarratano concurring seem constitution requires follow particular federal model postconviction proceedings considerable discretion id kennedy concurring judgment udicial imposition categorical remedy might pretermit responsible solutions considered congress state legislatures although finley murray involved postconviction proceedings constitutional right counsel rather direct appeal think language griffin suggests principle contexts griffin underlying constitutional right issue short keeping status particularly status federal system avoid imposing single solution top evaluate state procedures one time come us see murray supra leaving challenging task crafting appropriate procedures laboratory first instance cruzan director mo dept health concurring citation internal quotation marks omitted cavalierly imped ability serve laboratories testing solutions novel legal problems arizona evans ginsburg dissenting accordingly hold anders procedure merely one method satisfying requirements constitution indigent criminal appeals may confident craft procedures terms policy superior least good anders constitution erects barrier iii determined california wende procedure unconstitutional merely diverges anders procedure turn consider wende procedure merits think clear california system violate fourteenth amendment provides criminal appellant pursuing first appeal right minimum safeguards necessary make appeal adequate effective evitts lucey quoting griffin plurality opinion admitted numerous occasions precise rationale griffin douglas lines cases never explicitly stated support derived equal protection clause fourteenth amendment due process clause amendment evitts supra quoting ross moffitt omitted case law reveals practical matter two clauses largely converge require state procedure afford adequate effective appellate review indigent defendants griffin plurality opinion state procedure provides review long reasonably ensures indigent appeal resolved way related merit appeal see id plurality opinion state law regulating indigents appeals bore rational relationship defendant guilt innocence id frankfurter concurring judgment law imposed differentiations relation rational policy criminal appeal douglas decision first appeal without benefit counsel matter meritorious indigent case may turn discriminates rich poor rather possibly good obviously bad cases internal quotation marks omitted rinaldi yeager state appellate system must free unreasoned distinctions evitts supra law griffin decided appeal way arbitrary respect issues involved compare finley equal protection guarantee assure indigent defendant adequate opportunity present claims fairly context state appellate process quoting ross supra evitts supra ue process requires offer defendant fair opportunity obtain adjudication merits appeal discussing griffin douglas determining whether particular state procedure satisfies standard important focus underlying goals procedure serve ensure indigents whose appeals frivolous receive counsel merits brief required douglas also enable state protect frivolous appeals subsidized public moneys needlessly spent griffin supra frankfurter concurring judgment although douglas indigents generally right counsel first appeal right equally true right include right bring frivolous appeal concomitantly include right counsel bringing frivolous appeal see mccoy douglas supra see also cronic course sixth amendment require trial counsel impossible unethical cf nix whiteside violation sixth amendment right effective assistance counsel trial counsel refuses violate ethical duty assist client presenting perjured testimony put point differently indigent defendant appeal dismissed frivolous deprived fair opportunity bring appeal evitts supra see finley supra fairness require either counsel full appeal properly determined appeal frivolous obvious goal anders prevent limitation right appellate counsel swallowing right see penson mccoy supra retreat goal today think wende procedure reasonably ensures indigent appeal resolved way related merit appeal whatever strengths weaknesses matter policy say fails afford indigents adequate effective appellate review fourteenth amendment requires comparison wende procedure procedures evaluated chief cases area makes evident wende procedure undoubtedly far better procedures found inadequate anders disapproving former california procedure chiefly relied three precedents ellis eskridge washington bd prison terms paroles per curiam lane brown see anders although anders explain detail california procedure inadequate precedents particularly heavy reliance ellis makes clear significant factor old california procedure require either counsel determine appeal frivolous instead procedure required determine defendant unlikely prevail appeal compare anders supra counsel convinced conscientious investigation appeal frivolous course may ask withdraw agrees counsel evaluation case leave withdraw may allowed leave appeal may quoting ellis supra anders supra say finding frivolity see also mccoy supra quoting passage ellis quoted anders problem also appears one flaws procedures issue eskridge lane former involved finding grave prejudicial trial anders supra quoting eskridge supra latter finding appeal unsuccessful anders supra quoting lane supra wende contrast requires counsel find appeal lacking arguable issues say frivolous see cal see reading anders finding old california procedure deficient largely make express finding appeal frivolous additional problem old california procedure apparently permitted appellate allow counsel withdraw thereafter decide appeal without appointing new counsel see anders supra resolved doubt point penson struck procedure allowed counsel withdraw determined whether counsel evaluation case accurate addition allowed decide appeal without counsel even found arguable issues id stating latter flaw ost significan one thus penson procedure permitted basic violation douglas right counsel case determined frivolous receive merits brief nonfrivolous appeal see important emphasize denial counsel case left petitioner completely without representation appellate actual decisional process ibid defendant entirely without assistance counsel appeal cf mccoy approving procedure appellate first finds appeal frivolous affirms relieves counsel wende contrast douglas violations occur counsel move withdraw orders briefing finds arguable issues see wende supra see also rowland cal app cal rptr anders also disapproved old california procedure thought one paragraph letter counsel stating bare conclusion appeal merit insufficient unclear opinion anders much objection point severable objection lack finding frivolity immediately followed description counsel merit letter discussion ellis eskridge lane lack finding see event wende brief provides bare conclusion counsel summary case procedural factual history citations record ensures trained legal eye searched record arguable issues assists reviewing evaluation case finally additional flaw procedures eskridge lane one tier review trial judge eskridge understandably little incentive find error warranting appeal public defender lane see anders supra procedure douglas part flawed reason see douglas wende procedure course suffer flaw provides least two tiers review wende procedure far exceed procedures found invalid also least comparable procedures approved turning first procedure set final section anders note beginning faced consistent severe criticism sade cal quoting note texas rev one consistent criticisms one wrestled mccoy anders tension counsel ethical duty officer requires present frivolous arguments also duty client interests might permit counsel characterize client claims frivolous california wende procedure made effort mitigate problem requiring wende brief raise legal issues requiring counsel explicitly describe case frivolous see wende cal another criticism anders procedure incoherent thus impossible follow making criticism point language anders suggesting appeal wholly frivolous time contain arguable issues even though also said issue arguable therefore frivolous anders supra words anders procedure appears adopt gradations frivolity use two different meanings phrase arguable issue wende procedure attempts resolve problem well drawing line frivolity defining arguable issues frivolous finally wende procedure appears ways better one approved mccoy ways worse balance say latter assuming arguendo outweigh former sufficiently make wende procedure unconstitutional wisconsin procedure evaluated mccoy required counsel filing anders brief explain issues raised brief lacked merit arguably exacerbated ethical problem already present anders procedure wende procedure explained attempts mitigate problem appears mccoy scheme counsel discussed appellate reviewed parts record cited counsel support arguable issues raised see wende procedure contrast requires thorough treatment record counsel see wende cal id clark concurring judgment dissenting part hand mccoy procedure unlike wende procedure assist reviewing directing particular legal issues issues presumably good thing also possible bad judgment attorney selecting issues raise might divert attention meritorious unmentioned issues criticism course equally applicable anders procedure moreover issues counsel raise mccoy brief briefing issues frivolous may predispose reach conclusion wende procedure reduces risks omitting brief signals may subtly undermine independence thoroughness second review indigent case purpose resolve arguments constitution resolve require us address prudent appropriate constitutionally compelled cronic enough say wende procedure like anders mccoy procedures unlike ones ellis eskridge lane douglas penson affords adequate effective appellate review criminal indigents thus constitutional violation case simply wende procedure used iv since robbins counsel complied valid procedure determining indigent direct appeal frivolous reverse ninth circuit judgment wende procedure fails adequately serve constitutional principles identified anders reversal necessarily mean robbins claim appellate counsel rendered constitutionally ineffective assistance fails may robbins argues appeal frivolous thus entitled merits brief rather wende brief indeed district ninth circuit found two arguable issues direct appeal meaning arguable issue used opinions however far clear courts likely used phrase unusual way used anders issue arguably supporting appeal even though appeal wholly frivolous see discussing arguable issues context requirements anders app district opinion issue warrant merits brief courts may used term signify issues arguable normal sense nonfrivolous thus warranting merits brief see app district considering arguable issues determine whether anders violated also defining arguable issue one counsel argue good faith potential prevailing courts determining whether arguable issues address petitioner argument least regard adequacy prison law library robbins waived issue appeal failing object trial thus necessary remand clarify strong two issues remand proper standard evaluating robbins claim appellate counsel ineffective neglecting file merits brief enunciated strickland washington see smith murray applying strickland claim attorney error appeal respondent must first show counsel objectively unreasonable see strickland failing find arguable issues appeal counsel unreasonably failed discover nonfrivolous issues file merits brief raising robbins succeeds showing burden demonstrating prejudice must show reasonable probability counsel unreasonable failure file merits brief prevailed appeal see defendant must show reasonable probability counsel unprofessional errors result proceeding different applicability strickland prong robbins claim ineffective assistance follows penson distinguished denial counsel altogether appeal warrants presumption prejudice mere ineffective assistance counsel appeal see defendant penson faced denial counsel discussed supra invalid state procedure followed procedure clearly invalid insofar denied defendant right appellate counsel douglas see holding penson consistent strickland said presume prejudice defendant suffered ctual constructive denial assistance counsel altogether see also cronic supra words normally apply strong presumption reliability judicial proceedings require defendant overcome presumption strickland supra penson complete denial counsel understandably presume opposite see strickland supra defendant received appellate counsel complied valid state procedure determining whether defendant appeal frivolous state time left defendant without counsel appeal reason presume defendant prejudiced penson worried requiring defendant establish prejudice leave without protections afforded anders contrast counsel followed procedure constitutional anders precedents area robbins therefore received procedural protection constitution requires thus presume result proceedings appeal reliable require robbins prove presumption incorrect particular case see strickland claim robbins presses fall within three categories cases described strickland presume prejudice rather require defendant demonstrate first noted presume prejudice case denial counsel second various kinds state interference counsel assistance warrant presumption prejudice id see cronic third prejudice presumed counsel burdened actual conflict interest strickland although case require defendant show conflict adversely affected counsel performance ibid none three categories applies case robbins policy reason offered strickland first two categories apply case attorney unreasonably chooses follow procedure anders wende instead filing merits brief prejudice likely inquiry prejudice worth cost see cronic supra contrary cases defendant appeal found pursuant valid state procedure frivolous fact frivolous harder apply strickland area defendant claims received ineffective assistance appellate counsel counsel although filing merits brief failed raise particular claim likely easier jones barnes held appellate counsel files merits brief need raise every nonfrivolous claim rather may select among order maximize likelihood success appeal notwithstanding barnes still possible bring strickland claim based counsel failure raise particular claim difficult demonstrate counsel incompetent see gray greer generally ignored issues clearly stronger presented presumption effective assistance counsel overcome claim counsel erroneously failed file merits brief easier satisfy first part strickland test necessary show reasonably competent attorney found one nonfrivolous issue warranting merits brief rather showing particular nonfrivolous issue clearly stronger issues counsel present cases however prejudice analysis sum robbins must satisfy prongs strickland test order prevail claim ineffective assistance appellate counsel judgment appeals reversed case remanded proceedings consistent opinion ordered george smith warden petitioner lee robbins writ certiorari appeals ninth circuit january justice stevens justice ginsburg joins dissenting join justice souter cogent dissent without qualification write separately emphasize two points obscured somewhat meandering explanation sharp departure settled law first despite failure say directly effectively overruled anders california penson ohio second unexplained rejection reasoning underlying decision mccoy appeals dist see ante illustrates extent today majority disregard accepted precedent make first point necessary quote new standard determining whether state appellate procedure affords adequate review indigent defendants state procedure provides review long reasonably ensures indigent appeal resolved way related merit appeal ante california procedure reviewed anders ohio procedure reviewed penson found inadequate easily satisfied standard yet today accepts california current procedure requires counsel find appeal lacking arguable issues ante defense position anders california relied heavily requirements additional feature state system also reads full record brief respondent anders california pp see also anders decision held however additional feature insufficient safeguard indigent appellant rights make second point shall draw experience practicing lawyer judge good many occasions found task writing reasons support initial opinion question law whether purpose giving advice client purpose explaining vote appellate judge leads conclusion previously apparent colleagues shared view importance giving reasons opposed merely announcing conclusions joined opinions authored mccoy penson nickols gagnon casual rejection reasoning mccoy simply ignores portion opinion wisconsin rule merely requires attorney go one step instead relying unexplained assumption attorney discovered law facts completely refute arguments identified brief wisconsin requires additional evidence counsel diligence requirement furthers interests served minimum requirements anders counsel may discover previously unrecognized aspects law process preparing written explanation conclusion discussion requirement provides additional safeguard mistaken conclusions counsel strongest arguments find frivolous like references favorable aspects record required anders discussion requirement may forestall motions withdraw assist passing soundness lawyer conclusion appeal frivolous mccoy see also penson short simply putting pen paper often shed new light may first appear issue id reason quite wrong say requiring counsel articulate reasons conclusion results less effective advocacy ante appellate employed law clerk review trial transcripts indigent appeals search arguable error reasonably sure resolved appeals way related merits however provide indigent appellant anything approaching representation paid attorney like california wende procedure violate principle substantial equality described anders mccoy part law decades mccoy anders george smith warden petitioner lee robbins writ certiorari appeals ninth circuit january justice souter justice stevens justice ginsburg justice breyer join dissenting defendant right representation appeal limited prohibition frivolous litigation realize lawyer corresponding obligations odds perfect place draw line believe procedure adopted people wende cal fails assure representation counsel adversarial character demanded constitution respectfully dissent although sixth amendment guarantees trial counsel felony defendant see gideon wainwright constitution contains similarly freestanding unconditional right counsel appeal obligation provide appellate review see ross moffitt state elects provide appellate review however terms subject constitutional notice see griffin illinois rinaldi yeager evitts lucey line cases beginning griffin examined appellate procedural schemes principle justice may conditioned ability pay see generally ross supra even though bsolute equality required douglas california held douglas state criminal defendants free retain counsel first appeal right fourteenth amendment requires indigent appellants placed substantially equal footing appointment counsel state expense see mccoy appeals dist referring principle substantial equality two services appellate counsel point appellate counsel examines trial record advocate eye identifying weighing potential issues appeal review dispassionate legal mind committed representative pledged client interests primed attack conviction ground record may reveal counsel review reveals arguable trial error prepares submits brief merits argues appeal right first services partisan scrutiny record assessment potential issues goes irreducible core lawyer obligation litigant adversary system consistently held essential substantial equality representation assigned counsel paramount importance vigorous representation follows nature adversarial system justice penson ohio see ellis per curiam douglas supra mccoy supra right unqualified defendant retained counsel imagine reason counsel appointed right second service merits briefing similarly unqualified however issue address today arises limitation right merits brief one right wholly frivolous appeal see anders california judicial system first line defense lawyers officers members bar bound clog courts frivolous motions appeals polk county dodson see also mccoy supra course true regardless lawyer retained appointed status given case problem anders responds arises counsel views client appeal frivolous leaving duty barred pressing upon rub although counsel may properly refuse brief frivolous issue may properly deny leave take frivolous appeal needs reasonable assurance lawyer relaxed partisan instinct prior refusing case review never compensate lawyer failure advocacy simple statement counsel appeal merit coupled appellate endorsement counsel conclusion gives affirmative indication anyone sought appellant best arguments championed cause degree contemplated adversary system conclusions acquire implicit persuasiveness exposure interested opponent readiness mount challenge government unlikely dispute even test counsel evaluation one berate opponent giving guard possibility counsel done advocate work looking hard potential issues must prod find reclusive merit ostensibly unpromising case process assess lawyer efforts fact judicial process renders constitutional error invisible affront constitution see penson supra anders devised mechanism ensure respect appellant rights see penson supra lawyer request withdraw ground appeal frivolous must accompanied brief referring anything record might arguably support appeal anders simply means counsel must partisan best short calling black white flag points come closest appealable lawyer job state issues give defendant best chances prevail even best comes short rule trifling counsel continued proceeds full examination proceedings decide whether case wholly frivolous ibid anders thus contemplates two reviews record markedly different character first comes review advocate defendant interested representative job identify best issues partisan eye spot comes judicial review disinterested judge asks two questions whether lawyer really function committed advocate whether misjudged legitimate appealability issue reviewing advocate work responsible assuring counsel gone far advocacy take best issues undiscounted repeatedly described task appellate terms dual first must satisfy attorney provided client diligent thorough search record arguable claim might support client appeal second must determine whether counsel correctly concluded appeal frivolous penson quoting mccoy griffin anders thus require significantly abstract evaluation merits conceivably appealable points without assurance assigned counsel done best partisan substantial equality lawyer retained defendant expense assumed without benefit lawyer statement strongest claims appellate panel act reviewing relegated inquisitorial role owing importance assuring adversarial inquisitorial system work disagree statement today cases approve state procedure reasonably ensures indigent appeal resolved way related merit appeal ante purely inquisitorial system satisfy criterion one appoints counsel appellate deems useful rejected former explicitly held latter unconstitutional see douglas reason case constitution looks means well ends see singer constitution recognizes adversary system proper method determining guilt see also penson supra criminal appellant entitled advocacy strickland washington sixth amendment recognizes right assistance counsel envisions counsel playing role critical ability adversarial system reach results cronic thus adversarial process protected sixth amendment requires accused counsel acting role advocate quoting anders supra ii held details anders exclusive make sense read case exemplifying substantial equality requires behalf indigent appellants entitled advocate review reasonable certainty arguable issues briefed merits anders thus benchmark california wende procedure fails measure primary failing permitting counsel refrain matter course mentioning possibly arguable issues brief second deficiency correlative first obliging appellate search record arguable issues without benefit brief review see cal although wende assumes counsel act advocate see fails assure even promote partisan attention constitution requires lawyer must summarize procedural factual history case citations record nothing wende scheme requires counsel show affirmatively subject evaluation made committed search issues advocate assessment merits go heart appellate representation adversary system begs question say ounsel inability find arguable issues may readily inferred failure raise id misses point argue indigent appellant adequately protected lawyer assigned case california assigned counsel scheme may file wende brief without approval supervisor point need affirmative express indicator advocate work form product appellate specifically review thus anders requires counsel flag best issues sake keeping counsel toes giving focus judicial review judgment wende hand requires indication conceivable issues hence nothing specifically reviewable bound preserve system adversary character wende protect indigent right advocacy letter condemned anders conclusory statement disapproved penson like reasoning wende deficient relying judge nonpartisan review assure defendant suffers prejudice hands lawyer failed document best effort partisan review exactly system assumes lawyer committed client dependable guardian client interest see supra consistently rejected procedures leaving determination frivolousness first instance see douglas supra following conclusory declaration counsel see penson assisted counsel role amicus curiae see ellis defect procedures entire reliance review detached magistrate apply partisan scrutiny first instance defendants paid lawyers get matter course goes without saying wende reliance judges start scratch seeking arguable issues adds substantially burden judicial shoulders need decide whether drawback wende scheme constitutional significance raises questions certainly underscore constitutional failing relying judicial scrutiny uninformed counsel partisan analysis amicus brief filed case retired justices courts appeal california pointed risk review cold record wende scheme perfunctory without guidance associated record citations counsel brief retired justice armand arabian et al amici curiae amici candidly represented hen california appellate receives wende brief assigns case staff attorney prepares memorandum analyzing possible legal issues case typically staff attorney makes oral presentation appellate panel brief retired justice arabian supra responsibility counsel thrown onto gives way staff attorney clearer wende seriously odds respective obligations counsel courts contemplated constitution iii unlike reach question appropriate relief respect respondent anders claim appeals premised disposition finding two potentially meritorious issues showed robbins prejudiced failure wende scheme result litigation think unnecessary invoke findings however hold robbins simply failure provide advocate analysis issues predicate review without effect require state courts reinstate appeal treatment consistent anders application griffin true course relief normally granted want adequate assistance trial counsel defendant must show lawyer failure represent reasonable competence demonstrated failure file advocate brief also reasonable probability competent representation produced different result case see strickland assumption behind strickland prejudice requirement defendant lawyer representing advocate least level whereas premise assumed defendant receives benefit nothing wende brief wende situation nominal counsel functioning merely friend helping judge grasp structure record even purporting highlight record nearest approach supporting client hope appeal counsel wende less judge law clerk staff attorney might nothing way advocacy lawyer abandons role advocate adopts amicus curiae longer functioning counsel rendering assistance within meaning sixth amendment see cronic since apparently missing ingredient advocate analysis goes essence right counsel lawyer nothing file wende brief closer counsel subpar counsel strickland think answer suggestion specific assessment prejudice need shown order get relief wende complete absence counsel reversible violation constitutional right representation even question end day smartest lawyer world watched client led prison see cronic supra cf rodriquez ask defendant fared given counsel look sort appeal might ensued appellant lawyer flagged points came closest appealable issues result equally consistent cases holding violation due process complete defendant denied right appeal otherwise entitled pursue see peguero concurring rodriquez supra conclusion anticipated penson dealt violation anders standards counsel allowed withdraw without supplying best effort identify appealable weaknesses prior judicial determination counsel missed nothing finding arguable appellate issues record appellate penson subsequently identified arguable issues thought appointment new counsel unnecessary finding legitimately appealable issues losers recognized presumption prejudice without purposes strickland chapman california see penson although state failure appoint counsel identifying issues made penson egregious case failure advocacy consequent constructive absence counsel clear even point lawyer withdrew presumption prejudice applicable applicable case practical sense well good theory behind presumption prejudice requirement demonstrate prejudice specifically often place federal judges habeas highly precarious positions calling judgments state judges generally better qualified make since advocate help analyzing record direct state appeal since counsel may well absent formally well constructively state proceedings federal judge looking among things previously unidentified state law issues previously waived one ask certain guarantee inefficient time consuming judicial effort remains say word state argument relief case barred teague lane requiring application new rule law clearly entailed prior holdings argument seems california relied wende long disapproval federal juncture sort novelty resulting failure state defendants reach federal courts earlier wende objections obvious answer application douglas griffin standards meritless appeals subject repeated explanation starting anders echoed mccoy penson general rules announced become new every particular violation may subsequently occur see saffle parks discussing application rule jurek texas penry lynaugh point course answer objection aedpa anders petitioner seeking go beyond clearly established federal law determined ed supp iii wende procedure assure even minimal assistance counsel adversarial role constitution demands assurances hold robbins entitled appeal provides footnotes addition double review double determination frivolity california affords third layer review california appellate projects described recent opinion california appeal first district appellate projects contract contractual duties include review records assist counsel identifying issues brief counsel find meritorious issues raise decides file wende brief appellate project staff attorney reviews record determine whether wende brief appropriate thus time wende brief filed appeal record case reviewed counsel presumably well qualified handle case experienced attorney staff appellate project people hackett cal app cal rptr filing wende brief counsel consulted california appellate project second district appeal received permission file brief app antiterrorism effective death penalty act stat amended related provisions apply respondent habeas petition since filed petition act effective date april see lindh murphy subsequent cases ninth circuit reiterated view wende procedure unconstitutional differs anders procedure see delgado lewis cert pending davis kramer stay granted pending disposition pet constitution however require create appellate review first place see ross moffitt citing mckane durston true ellis see ellis cadc washington dissenting counsel concluded rulings district clearly erroneous constitute probable error fairly arguable question counsel proceeded present argument vacated remanded per curiam fact already degree see warner anders fifty appellants equal protection equal others rev arizona clark wl ariz course procedure eliminate risk error walters national assn radiation survivors although said indigent must receive substantial equality compared legal assistance defendant paid counsel receive mccoy appeals dist also emphasized bsolute equality required lines drawn often sustain douglas california distinction gives meaning previous emphasis indigent appellant right advocacy although indigent whose appeal frivolous right advocate make case appellate indigent cases right attorney zealous indigent interests evaluate case attempt discern nonfrivolous arguments see ellis anders california one former public defender explained attorney confronted anders situation something code professional responsibility describes unethical choice canon prefers violate pengilly never cry anders ethical dilemma counsel appointed pursue frivolous criminal appeal crim justice see also commonwealth moffett mass anders requires approach counsel hermann frivolous criminal appeals rev justice stewart dissent anders first make criticism procedure set anders majority record present arguable issues appeal frivolous see id see also wolfram modern legal ethics anders directives confusing contradictory see supra criticism anders unjust particularly critics claimed setting anders procedure oblivious problem scarce resources regard counsel courts result crafted rule diverts attention meritorious appeals indigents ensures poor representation indigents see pritchard auctioning justice legal market mechanisms allocating criminal appellate counsel crim rev anders created tragedy commons far guaranteeing adequate appellate representation criminal defendants instead ensures indigent criminal defendants receive mediocre appellate representation whether claims good bad omitted pritchard supra noting anders similar effect appellate courts pritchard supra udicial fiat cure scarcity merely disguises symptoms disease doherty wolf wolf ramifications frivolous appeals crim people suffer indigent prisoners unjustly convicted languish prison lawyers devote time energy hopeless causes first served basis omitted say whether wende procedure better worse anders procedure regard although aware arguments worse appellate courts see people williams cal app cal rptr brief retired justice armand arabian et al amici curiae clear extent criticism merit holding today anders procedure exclusive enable continue experiment solutions problem performance component need addressed first easier dispose ineffectiveness claim ground lack sufficient prejudice expect often course followed strickland washington moreover error counsel neither easy identify since necessary evaluate defendant case order find error attributable prosecution see strickland supra federal judges course fully capable assessing prejudice area including sorts claims robbins raised see duhamel collins defendant prejudiced appellate counsel failure challenge sufficiency evidence banks reynolds finding parts strickland test satisfied appellate counsel failed raise claim violation brady maryland cross rejecting challenge appellate counsel failure raise claim violation faretta california determining prejudice cert denied since robbins convicted state occasion consider whether per se prejudice approach lieu strickland requirement might appropriate context challenges federal convictions counsel deficient failing file merits brief direct appeal see goeke branch per curiam distinguishing rules established pursuant supervisory power administer federal system constitutional rules applicable cronic footnotes danger busy inexperienced lawyer might opt favor one sentence letter instead effective brief individual marginal case real notwithstanding dedication typifies profession however counsel ultimate evaluation case must supported written opinion referring anything record might arguably support appeal temptation discharge obligation summary fashion avoided reviewing provided meaningful assistance nickols citation footnotes omitted quoting anders california wende procedure issue case requires summary proceedings facts require counsel raise legal issues people wende cal see also ante procedure plainly serve purpose since force counsel put pen paper regarding things relevant appeal legal issues accordingly contrary assertion ante summary improve upon procedure rejected anders bare conclusion attorney appeal without merit footnotes griffin line cases roots due process equal protection see noted ost decisions area rested equal protection framework bearden georgia see also ross moffitt noting right appellate counsel profitably considered equal protection analysis anders addressed problem confronted assigned counsel though theory equally acute counsel retained unlikely show practice however paying clients generally fire lawyer expressing unsatisfying conclusions often find replacement keener eye arguable issues duller nose frivolous ones practical matter may find difficult costly prevent monied appellants wasting resources judicial system bringing frivolous appeals mean however obligated subsidize efforts indigents assurance become known around los angeles county jail dumptruck reply brief petitioner course appellate review constitutionally required may well able impose nonadversarial review appellants may however reserve adversary system able afford counsel since state petitioner claims lawyer unrevealing conclusory certification approved superior neither analysis need evaluate assertions amicus delgado scheme assigned representation uniform throughout state see brief jesus garcia delgado amicus curiae although habeas proceeding began february therefore governed antiterrorism effective death penalty act aedpa see lindh murphy result different case see infra since wende case like denial counsel make sense give state option demonstrate prejudice chapman calfornia brecht abrahamson require defendant show strickland washington presumption prejudice however promise relief every california defendant whose appeal dismissed frivolous statute limitations run see supp iii one submission us claims wende scheme supplanted anders california throughout california see brief jesus garcia delgado amicus curiae briefs measure according standards adumbrated anders course receive standard strickland analysis