“There is certainly a right to appear pro se, as well as a right to appointed counsel. Obviously, however, those rights cannot be both exercised at the same time.... [D]ecisions concerning which legal issues will be urged on appeal are uniquely within the lawyer's skill and competence, and their resolution is ultimately left to his judgment.” (internal citations and quotation marks omitted)
How later courts described this case
- “There is certainly a right to appear pro se, as well as a right to appointed counsel. Obviously, however, those rights cannot be both exercised at the same time.... [D]ecisions concerning which legal issues will be urged on appeal are uniquely within the lawyer's skill and competence, and their resolution is ultimately left to his judgment.” (internal citations and quotation marks omitted)
- court was not required to consider pro se papers filed while petitioner was represented by counsel
- the right to appointed counsel and to proceed pro se “cannot be both exercised at the same time”
Written by the judges who cited it.
The opinion
GURFEIN, Circuit Judge
(concurring):
I concur in the result but I cannot agree with all the reasoning of my brother Mes-kill in reaching the result. Appellant raises two points; first, that the State failed to provide him with the minutes of the Wade hearing on identification and that this failure amounted to a constitutional violation. Second, that he was denied effective assistance of counsel.
I would not say, as Judge Meskill does, that the issue of identification raised in the Wade hearing was “irrelevant” to his appeal. I base my conclusion that the judgment should be affirmed on different grounds. There is no New York policy of denying access to Wade hearing transcripts by indigent appellants. The cases dealing with a constitutional right to transcripts concern broad state policies which actually discriminate against the poor. See Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956) (payment of cost required from all); Lane v. Brown, 372 U.S. 477 , 83 S.Ct. 768 , 9 L.Ed.2d 892 (1963) (“Indiana procedure”); Draper v. Washington, 372 U.S. 487 , 83 S.Ct. 774 , 9 L.Ed.2d 899 (1963) (no free transcript unless trial judge found appeal not frivolous); Smith v. Bennett, 365 U.S. 708 , 81 S.Ct. 895 , 6 L.Ed.2d 39 (1961) (filing fee); Burns v. Ohio, 360 U.S. 252 , 79 S.Ct. 1164 , 3 L.Ed.2d 1209 (1959). These decisions stand for the proposition that a state cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons. See Ross v. Moffitt, 417 U.S. 600, 607 , 94 5. Ct. 2437, 41 L.Ed.2d 341 (1974) (per Rehnquist, /.). New York does not do that by statute, by rule or by common usage. See People v. Pitts, 46 A.D.2d 745 , 360 N.Y.S.2d 668 (1st Dep’t 1974).
To make a constitutional violation, which therefore would be cognizable under the equal protection clause of the Fourteenth *1077 Amendment, some state action directed specifically against appellant would have to be found. The State did not deny Ennis a free Wade transcript. He simply failed to seek it properly. There is no Fourteenth Amendment issue. But since Ennis had an appointed lawyer, he cannot necessarily be taxed with his own ignorance of the procedural remedy available. The claim inevitably shifts to an alleged inadequacy of his legal representation.
As Judge Meskill correctly notes Ennis has never presented this claim of ineffectiveness of counsel amounting to a Sixth Amendment deprivation to the state courts and has not therefore exhausted his state remedy. 28 U.S.C. § 2254 (b) and (c). I agree that we must deny the petition for this reason. Having reached that conclusion, I do not find it necessary to decide whether the raising of the single issue of merger by counsel in the Appellate Division necessarily precluded the issue of identification sought to be raised by appellant himself. The identification issue, if a serious issue, may perhaps not be left entirely to the lawyer’s decision not to press it as an issue on appeal any more than the critical decision whether to take an appeal from a criminal conviction can be taken away from a defendant by his lawyer. See, e. g., U. S. v. Reincke, 383 F.2d 129 (2d Cir. 1967). Nor would I agree to a general statement that once a defendant has a lawyer, everything and anything he asserts must fall on deaf ears. While it is generally true that one cannot have a lawyer and act pro se at the same time, there may be exceptions of constitutional magnitude which should not be foreclosed by generalization. In Wainwright v. Sykes, - U.S. -, 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977) the timely failure to object at trial prejudiced the prosecution. Here the vice of inadequate representation was laid in a post-trial setting. Whether that makes a decisive difference is an issue we do not have to decide.