Streater v. United States

NEBEKER, Associate Judge,

concurring:

This second generation appeal has been born of a concern by the United States Court of Appeals for the District of Columbia Circuit that this court system has, in Streater’s words, given him “the run around” in a claim of constitutional dimensions. Streater v. Jackson, 223 U.S.App.D.C. 393, 395 , 691 F.2d 1026, 1028 (1982). The claim is that he received “ineffective assistance of counsel” on appeal when his conviction was affirmed by this court in an Anders 1 procedure. The federal court of appeals assumed, without citation of authority, a right to effective assistance of counsel on appeal and found that “exceptional circumstances of peculiar urgency ... exist,” 2 permitting their intervention in this case. It did not state what those exceptional circumstances were. 3 The fact is that this court in 1978 followed, as it had before and has since, the procedure outlined in Anders in affirming Streater’s conviction. Counsel could find no nonfrivolous issue to present. He so informed this court and Streater. The court performed a review of the record, as Anders requires, and independently reached the same conclusion. See Internal Operating Procedures, DCCA, Part IV-D (providing for Anders dispositions by motions divisions “but only after review of the record on appeal, including reporter’s transcript”). The assumptions that Streater had a Sixth Amendment right to effective assistance of counsel on appeal *1060 and was deprived of that right, are most doubtful. Anders contemplates the procedure we followed — a procedure without counsel as an advocate. Surely the Supreme Court in that case, and most recently in Jones v. Barnes, — U.S. -, 103 S.Ct. 3308 , 77 L.Ed.2d 987 (1983), has not fashioned a constitutionally faulty procedure let alone one warranting extraordinary intervention through federal habeas corpus proceedings as if this case were one of exceptional circumstances of peculiar urgency.

When this court affirms a judgment of conviction under the Anders procedure, there is no basis to assume that the appellate process does not conform to appropriate standards. Cf. Jones v. Barnes, supra, 103 S.Ct. at 3312 (no constitutional right to have counsel advance every nonfrivolous issue urged by appellant). Anders itself contemplates that counsel may be allowed to withdraw. Simply put, our affirmance on review of the record, including the trial transcript, eclipses any contention that counsel or our procedure was inadequate.

Aside from the Anders procedure as reinforced last year in Jones v. Barnes, supra, it is noted that the United States Supreme Court has granted certiorari to decide the reach of the Sixth Amendment right to assistance of counsel on appeal. See Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir.), cert. granted, — U.S. -, 104 S.Ct. 2149 , 80 L.Ed.2d 535 (1984). I note in passing, however, that the Sixth Amendment is wholly in trial context and takes no account of the review process.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his de-fence.

U.S. Const. amend. VI (emphasis added). But see Strazzella, Ineffective Assistance of Counsel, 19 Ariz.L.Rev. 443, 466-67 n. 117, 118 (1977).

This case is curious for yet another reason. In Swain v. Pressley, 430 U.S. 372 , 97 S.Ct. 1224 , 51 L.Ed.2d 411 (1977), the Supreme Court held that D.C.Code 23-110(g) (1981), precludes resort to federal habeas corpus proceedings just as the Congress had done through 28 U.S.C. § 2255 . The Court said:

Just as § 2255 was intended to substitute a different forum and a different procedure for collateral review of federal convictions, § 23-110(g) was plainly intended to achieve a parallel result with respect to convictions in the District of Columbia.

Id. at 378, 97 S.Ct. at 1228 . How Congress can be taken to have permitted federal habeas corpus proceedings to be interposed to question the appellate process of this court but not the trial court process seems impossible to reconcile. In any event, since the circuit court’s brief per curiam opinion did not address this issue, I assume that it did not reach and decide it. That court, however, ordered the habeas corpus proceedings open for a more “intelligently” based ruling after this court could be “invited” to consider and rule on Streater’s claim. Streater v. Jackson, supra, 223 U.S.App.D.C. at 395 , 691 F.2d at 1028 . Our motions division accepted that invitation by reopening the appeal and vacating the judgment of affirmance. The District Court has now appropriately dismissed the habeas petition as moot.

. Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967).

. Ex parte Hawk, 321 U.S. 114, 117 , 64 S.Ct. 448, 450 , 88 L.Ed. 572 (1944).

.Interestingly, an examination of the District Court record and the clerk’s file in the circuit court does not reveal a certificate of probable cause for appeal from the District Court’s original dismissal of the petition. 28 U.S.C. § 2253 (1982) requires such a certificate to vest the circuit court with jurisdiction. See McCarthy v. Harper, 449 U.S. 1309 , 101 S.Ct. 827 , 66 L.Ed.2d 782 (1981).