Jones v. Barnes

463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987, 1983 U.S. LEXIS 105, 51 U.S.L.W. 5151

• Court: Supreme Court of the United States
• Decided: July 5, 1983
• Docket: 81-1794
• Status: Published

Opinions

Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to consider whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant.

I

In 1976, Richard Butts was robbed at knifepoint by four men in the lobby of an apartment building; he was badly beaten and his watch and money were taken. Butts informed a Housing Authority detective that he recognized one of his assailants as a person known to him as “Froggy,” and gave a physical description of the person to the detective. The following day the detective arrested respondent David Barnes, who is known as “Froggy.”

Respondent was charged with first- and second-degree robbery, second-degree assault, and third-degree larceny. The prosecution rested primarily upon Butts’ testimony and his identification of respondent.¹ During cross-examination, defense counsel asked Butts whether he had ever undergone psychiatric treatment; however, no offer of proof was made on the substance or relevance of the question after the trial judge sua sponte instructed Butts not to answer. At the close of trial, the trial judge declined to give an instruction on accessorial liability requested by the defense. The jury convicted respondent of first- and second-degree robbery and second-degree assault.

The Appellate Division of the Supreme Court of New York, Second Department, assigned Michael Melinger to represent respondent on appeal. Respondent sent Melinger a letter listing several claims that he felt should be raised.² Included were claims that Butts’ identification testimony should have been suppressed, that the trial judge improperly excluded psychiatric evidence, and that respondent’s trial counsel was ineffective. Respondent also enclosed a copy of a pro se brief he had written.

In a return letter, Melinger accepted some but rejected most of the suggested claims, stating that they would not aid respondent in obtaining a new trial and that they could not be raised on appeal because they were not based on evidence in the record. Melinger then listed seven potential claims of error that he was considering including in his brief, and invited respondent’s “reflections and suggestions” with regard to those seven issues. The record does not reveal any response to this letter.

Melinger’s brief to the Appellate Division concentrated on three of the seven points he had raised in his letter to respondent: improper exclusion of psychiatric evidence, failure to suppress Butts’ identification testimony, and improper cross-examination of respondent by the trial judge. In addition, Melinger submitted respondent’s own pro se brief. Thereafter, respondent filed two more pro se briefs, raising three more of the seven issues Melinger had identified.

At oral argument, Melinger argued the three points presented in his own brief, but not the arguments raised in the pro se briefs. On May 22, 1978, the Appellate Division affirmed by summary order, New York v. Barnes, 63 App. Div. 2d 865, 405 N. Y. S. 2d 621 (1978). The New York Court of Appeals denied leave to appeal, New York v. Barnes, 45 N. Y. 2d 786 (1978).

On August 8, 1978, respondent filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Respondent raised five claims of error, including ineffective assistance of trial counsel. The District Court held the claims to be without merit and dismissed the petition. United States ex rel. Barnes v. Jones, No. 78-C-1717 (Nov. 27, 1978). The Court of Appeals for the Second Circuit affirmed, 607 F. 2d 994, and we denied a petition for a writ of certiorari, 444 U. S. 853 (1979).

In 1980, respondent filed two more challenges in state court. On March 4, 1980, he filed a motion in the trial court for collateral review of his sentence. That motion was denied on April 28, and leave to appeal was denied on October 3. Meanwhile, on March 31, 1980, he filed a petition in the New York Court of Appeals for reconsideration of that court’s denial of leave to appeal. In that petition, respondent for the first time claimed that his appellate counsel, Melinger, had provided ineffective assistance. The New York Court of Appeals denied the application on April 16, 1980, New York v. Barnes, 49 N. Y. 2d 1001.

Respondent then returned to United States District Court for the second time, with a petition for habeas corpus based on the claim of ineffective assistance by appellate counsel. The District Court concluded that respondent had exhausted his state remedies, but dismissed the petition, holding that the record gave no support to the claim of ineffective assistance of appellate counsel on “any . . . standard which could reasonably be applied.” No. 80-C-2447 (EDNY, Jan. 80, 1981), reprinted in App. to Pet. for Cert. 28a. The District Court concluded:

“It is not required that an attorney argue every conceivable issue on appeal, especially when some may be without merit. Indeed, it is his professional duty to choose among potential issues, according to his judgment as to their merit and his tactical approach.” Id., at 28a-29a.

A divided panel of the Court of Appeals reversed, 665 F. 2d 427 (1981).³ Laying down a new standard, the majority held that when “the appellant requests that [his attorney] raise additional colorable points [on appeal], counsel must argue the additional points to the full extent of his professional ability.” Id., at 433 (emphasis added). In the view of the majority, this conclusion followed from Anders v. California, 386 U. S. 738 (1967). In Anders, this Court held that an appointed attorney must advocate his client’s cause vigorously and may not withdraw from a nonfrivolous appeal. The Court of Appeals majority held that, since Anders bars counsel from abandoning a nonfrivolous appeal, it also bars counsel from abandoning a nonfrivolous issue on appeal.

“[AJppointed counsel’s unwillingness to present particular arguments at appellant’s request functions not only to abridge defendant’s right to counsel on appeal, but also to limit the defendant’s constitutional right of equal access to the appellate process . . . 665 F. 2d, at 433.

The Court of Appeals went on to hold that, “[hjaving demonstrated that appointed counsel failed to argue colorable claims at his request, an appellant need not also demonstrate a likelihood of success on the merits of those claims.” Id., at 434.

Thq court concluded that Melinger had not met the above standard in that he had failed to press at least two non-frivolous claims: the trial judge’s failure to instruct on accessory liability and ineffective assistance of trial counsel. The fact that these issues had been raised in respondent’s own pro se briefs did not cure the error, since “[a] pro se brief is no substitute for the advocacy of experienced counsel.” Ibid. The court reversed and remanded, with instructions to grant the writ of habeas corpus unless the State assigned new counsel and granted a new appeal.

Circuit Judge Meskill dissented, stating that the majority had overextended Anders. In his view, Anders concerned only whether an attorney must pursue nonfrivolous appeals; it did not imply that attorneys must advance all nonfrivolous issues.

We granted certiorari, 457 U. S. 1104 (1982), and we reverse.

II

In announcing a new per se rule that appellate counsel must raise every nonfrivolous issue requested by the client,⁴ the Court of Appeals relied primarily upon Anders v. California, supra. There is, of course, no constitutional right to an appeal, but in Griffin v. Illinois, 351 U. S. 12, 18 (1956), and Douglas v. California, 372 U. S. 353 (1963), the Court held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent. It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal, see Wainwright v. Sykes, 433 U. S. 72, 93, n. 1 (1977) (Burger, C. J., concurring); ABA Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980). In addition, we have held that, with some limitations, a defendant may elect to act as his or her own advocate, Faretta v. California, 422 U. S. 806 (1975). Neither Anders nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points.

This Court, in holding that a state must provide counsel for an indigent appellant on his first appeal as of right, recognized the superior ability of trained counsel in the “examination into the record, research of the law, and marshalling of arguments on [the appellant’s] behalf,” Douglas v. California, supra, at 358. Yet by promulgating a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed, the Court of Appeals seriously undermines the ability of counsel to present the client’s case in accord with counsel’s professional evaluation.

Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated:

“One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. . . . [Experience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one.” Jackson, Advocacy Before the United States Supreme Court, 25 Temple L. Q. 115, 119 (1951).

Justice Jackson’s observation echoes the advice of countless advocates before him and since. An authoritative work on appellate practice observes:

“Most cases present only one, two, or three significant questions .... Usually, ... if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones.” R. Stern, Appellate Practice in the United States 266 (1981).⁵

There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This has assumed a greater importance in an era when oral argument is strictly limited in most courts — often to as little as 15 minutes — and when page limits on briefs are widely imposed. See, e. g., Fed. Rule App. Proc. 28(g); McKinney’s New York Rules of Court §§ 670.17(g)(2), 670.22 (1982). Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments — those that, in the words of the great advocate John W. Davis, “go for the jugular,” Davis, The Argument of an Appeal, 26 A. B. A. J. 895, 897 (1940) — in a verbal mound made up of strong and weak contentions. See generally, e. g., Godbold, Twenty Pages and Twenty Minutes — Effective Advocacy on Appeal, 30 Sw. L. J. 801 (1976).⁶

This Court’s decision in Anders, far from giving support to the new per se rule announced by the Court of Appeals, is to the contrary. Anders recognized that the role of the advocate “requires that he support his client’s appeal to the best of his ability.” 386 U. S., at 744. Here the appointed counsel did just that. For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every “colorable” claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard.⁷ The judgment of the Court of Appeals is accordingly

Reversed.

1 This identification, which took place in a one-on-one meeting arranged by the police, was the subject of a pretrial hearing. The trial judge found it unnecessary to rule on the validity of that identification. He concluded that Butts’ subsequent in-court identification was based upon an independent source, since Butts had known respondent for several years prior to the robbery.

2 Respondent’s letter is not in the record. Its contents may be inferred from Melinger’s letter in response.

3 By this time, at least 26 state and federal judges had considered respondent’s claims that he was unjustly convicted for a crime committed five years earlier; and many of the judges had reviewed the case more than once. Until the latest foray, all courts had rejected his claims.

4 The record is not without ambiguity as to what respondent requested. We assume, for purposes of our review, that the Court of Appeals majority correctly concluded that respondent insisted that Melinger raise the issues identified, and did not simply accept Melinger’s decision not to press those issues.

5 Similarly, a manual on practice before the Court of Appeals for the Second Circuit declares: “[A] brief which treats more than three or four matters runs serious risks of becoming too diffuse and giving the overall impression that no one claimed error can be serious.” Committee on Federal Courts of the Association of the Bar of the City of New York, Appeals to the Second Circuit 38 (1980).

6 The ABA Model Rules of Professional Conduct provide:

“A lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued.... In a criminal case, the lawyer shall abide by the client’s decision,... as to a plea to be entered, whether to waive jury trial and whether the client mil testify.” Model Rules of Professional Conduct, Proposed Rule 1.2(a) (Final Draft 1982) (emphasis added).

With the exception of these specified fundamental decisions, an attorney’s duty is to take professional responsibility for the conduct of the case, after consulting -with his client.

Respondent points to the ABA Standards for Criminal Appeals, which appear to indicate that counsel should accede to a client’s insistence on pressing a particular contention on appeal, see ABA Standards for Criminal Justice 21-3.2, p. 21-42 (2d ed. 1980). The ABA Defense Function Standards provide, however, that, with the exceptions specified above, strategic and tactical decisions are the exclusive province of the defense counsel, after consultation with the client. See id., 4-5.2. See also ABA Project on Standards for Criminal Justice, The Prosecution Function and The Defense Function § 5.2 (Tent. Draft 1970). In any event, the fact that the ABA may have chosen to recognize a given practice as desirable or appropriate does not mean that that practice is required by the Constitution.

7 The only question presented by this case is whether a criminal defendant has a constitutional right to have appellate counsel raise every non-frivolous issue that the defendant requests. The availability of federal habeas corpus to review claims that counsel declined to raise is not before us, and we have no occasion to decide whether counsel’s refusal to raise requested claims would constitute “cause” for a petitioner’s default within the meaning of Wainwright v. Sykes, 433 U. S. 72 (1977). See also Engle v. Isaac, 456 U. S. 107, 128 (1982).