Opposition Brief — Martinez v. Court of Appeal of Cal., Fourth Appellate Dist.

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

Petitioner,

COURT OF APPEAL OF CALIFORNIA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEAL FOR THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION THREE

BRIEF OF RESPONDENT IN OPPOSITION

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

LAURA WHITCOMB HALGREN .

Supervising Deputy Attorney General

ROBERT M. FOSTER

Supervising Deputy Attorney General

Counsel of Record

110 West A St., Suite 1100

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2284

Fax: (619) 645-2271

Counsel for Respondent

Does a criminal defendant have a federal constitutional

right to elect self-representation in the direct appeal from

the judgment of his conviction?

STATEMENT OF THE CASE

REASONS FOR DENYING THE WRIT

THE DECISION BELOW IS CORRECT AND CALIFORNIA'S

APPELLATE REVIEW PROCESS COMPLIES WITH THE DUE

PROCESS AND EQUAL PROTECTION CLAUSES

A. There Is No Constitutional Right To Elect

Self-Representation On Appeal

The standards governing recognition of a

fundamental right under the United

States Constitution

There is no constitutional right to an

appeal

A criminal defendant has no

constitutional right to be present at or

argue an appeal

If a state grants appellate review, the

due process and equal protection clauses

-- not the Sixth Amendment -- grant the

right to the effective assistance of

appellate counsel

The justification for self-

representation at trial cannot be easily

applied to a criminal appeal

A state's refusal to permit self-

representation on appeal does not deny a

criminal appellant due process or equal

protection, and is reviewed under the

rational basis standard

B. California's Appellate Process Comports

With The Requirements Of The Due Process

And Equal Protection Clauses And Bears A

Rational Relation To A Legitimate End

TABLE OF CONTENTS, CONT'D

1. California's appellate process ensures

the right to a thorough appeal brought

by competent appellate counsel

2. Denial of self-representation on appeal

comports with due process and equal

protection

Ir. THE STATES AND FEDERAL COURTS ARE DIVIDED AS

TO WHETHER A CRIMINAL APPELLANT HAS THE

CONSTITUTIONAL RIGHT TO ELECT SELF-

REPRESENTATION

CONCLUSION

iii

431 U.S. 651

97 S. Ct. 2034

52 L. Ed. 2d 651 (1977)

386 U.S. 738

87 S. Ct. 1396

18 L. Ed. 2d 493 (1967)

513 U.S. 5

115 S. Ct. 380

130 L. Ed. 2d 219 (1994)

463 U.S. 880

103 S. Ct. 3383

77 L. Ed. 2d 1090 (1983)

112 Nev. 352

914 P.2d 624 (Nev. 1996)

, 519 U.S. 881

117 S. Ct. 208

136 L. Ed. 2d 143 (1996)

430 U.S. 817

97 S. Ct. 1491

52 L. Ed. 2d 72 (1977)

478 U.S. 186

106 8. Ct. 2841

92 L. Ed. 24 140 (1986)

Brinson vy. McKeeman

992 F. Supp. 897 (W.D. Tex. 1997)

Brooks v. Buscher

62 F.3d 176 (7th Cir. 1995)

13,

15,

406 U.S. 605

92 S. Ct. 1891

32 L. Ed. 2d 358 (1972)

367 U.S. 886

81 S. Ct. 1743

6 L. Ed. 2d 1230 (1961)

30 Md. App. 628

354 A.2d 191 (Md. App. 1976)

Campbell] _v. Blodgett

940 F.2d 549 (9th Cir. 1991)

Carper v. DeLand

54 F.3d 613 (10th Cir. 1995)

329 U.S. 173

67 S. Ct. 216

91 L. Ed. 172 (1946)

Chamberlain v. Ericksen

744 F.2d 628 (8th Cir. 1984)

, 470 U.S. 1008

105 S. Ct. 1368

84 L. Ed. 2d 387 (1985)

CMM Cable Rep.. Inc. v.

48 F.3d 618 (lst Cir. 1995)

537 Pa. 581

645 A.2d 223 (Pa. 1994)

523 U.S. 833

118 S. Ct. 1708

140 L. Ed. 2d 1043 (1998)

Degrate v. Godwin

84 F.3d 768 (Sth Cir. 1996)

15,

372 U.S. 353

83 S. Ct. 814

9 L. Ed. 2d 811 (1963)

386 U.S. 748

87 S. Ct. 1402

18 L. Ed. 2d 501 (1967)

420 U.S. 534

95 S. Ct. 1173

43 L. Ed. 2d 377 (1975)

469 U.S. 387

105 S. Ct. 830

83 L. Ed. 2d 821 (1985)

422 U.S. 806

95 S. Ct. 2525

45 L. Ed. 2d 562 (1975)

Fields v. Murray

49 F.3d 1024 (4th Cir.)

cert. denied,

516 U.S. 884

116 S. Ct. 224

133 L. Bd. 2d 154 (1995)

372 U.S. 335

83 S. Ct. 792

9 L. Ed. 2d 799 (1963)

312 Ark. 517

850 S.W.2d 331 (Ark. 1993)

520 U.S. 924

117 S. Ct. 1807

138 L. Ed. 2d 120 (1997)

3, passim

13,

TABLE OF AUTHORITIES, CONT'D

Glover _v. Johnson

75 F.3d 264 (6th Cir.)

cert. denied, 519 U.S. 816

117 S. Ct. 67

136 L. Ed. 2d 28 (1996) 22

514 U.S. 115

115 S. Ct. 1275

131 L. Ed. 2a 152 (1995) 4

Gomez _v. Collins

993 F.2d 96 (Sth Cir. 1993) 29

Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex

442 U.S. 1

99 S. Ct. 2100

60 L. Ed. 2d 668 (1979) 14

351 U.S. 12

76 S. Ct. 585

100 L. Ed. 891 (1956) 6, 8

404 U.S. 519

92 S. Ct. 594

30 L. Ed. 2d 652 (1972) 23

401 U.S. 222

91 S. Ct. 643

28 L. Ed. 2d 1 (1971) 7

Hathorn v. State 7

848 S.W.2d 101 (Tex. Crim. App. 1992) 28

509 U.S. 312

113 S. Ct. 2637

125 L. Ed. 2d 257 (1993) 16

Hill _v. State

656 So. 2d 1271 (Fla. 1995) 28

Hines v. Enomoto

658 F.2d 667 (9th Cir. 1981) 29

vii

- — eS ee we

TABLE OF AUTHORITIES, CONT'D

Horton v. Dugger

895 F.2d 714 (11th Cir. 1990)

315 U.S. 411

62 S. Ct. 688

86 L. Ed. 932 (1942)

in_re Angelica V.

39 Cal. App. 4th 1007

46 Cal. Rptr. 2d 295 (1995)

In re Gallego

18 Cal. 4th 825

959 P.2d 290

77 Cal. Rptr. 2d 132 (1998)

In_re Jones

27 Cal. App. 4th 1032

33 Cal. Rptr. 2d 469 (1994)

iIn_re Oliver

333 U.S. 257

68 S. Ct. 499

92 L. Ed. 682 (1948)

in_xe_ Robbins

18 Cal. 4th 770

959 P.2d 311

77 Cal. Rptr. 2d 153 (1998)

In_re_ Spears

157 Cal. App. 3d 1203

204 Cal. Rptr. 333 (1984)

In re Walker

56 Cal. App. 3d 225

128 Cal. Rptr. 291 (1976)

520 U.S. 911

117 S. Ct. 1800

138 L. Ed. 2d 108 (1997)

463 U.S. 745

103 S. Ct. 3308

77 L. Ed. 2d 987 (1983)

viii

18,

10,

Kentucky v. Stincer

482 U.S. 730 465 U.S. 168

107 S. Ct. 2658 104 S. Ct. 944

96 L. Ed. 2d 631 (1987) 7 79 L. Ed. 2d 122 (1984) 10, 22-24

Kindley v. State McNeil _v. United States

879 S.W.2d 261 (Tex. App. 1994) 23 508 U.S. 106

113 S. Ct. 1980

977 F.2d 996 (6th Cir. 1992)

cert. denied, 507 U.S. 973 Moore v, City of East Cleveland, Ohio

113 S. Ct. 1415 431 U.S. 494

122 L. Ed. 2d 786 (1993) 22 97 S. Ct. 1932

52 L. Ed. 2d 531 (1977) 15

160 U.S. 293

16 S. Ct. 304 408 U.S. 471

40 L. Ed. 432 (1895) 5 92 S. Ct. 2593

33 L. Ed. 2d 484 (1972) 13, 14

Lamp v. State of Iowa

122 F.3d 1100 (8th Cir. 1997) 22

492 U.S. 1

Lewis v. Casey 109 S. Ct. 2765 .

518 U.S. 343 106 L. Ed. 2d 1 (1989) 22, 25, 26

116 S. Ct. 2174

135 L. Ed. 2d 606 (1996) 22 Myers vy. Collins

8 F.3d 249 (Sth Cir. 1993) 29

Lumbert vy. Finley

735 F.2d 239 (7th Cir. 1984) 28 Myers v. Johnson

76 F.3d 1330 (Sth Cir. 1996) 29

M.L.B. v. S.L.J,

519 U.S. 102 New York City Transit Authority v. Beazer

117 S. Ct. 555 440 U.S. 568

136 L. Ed. 2d 473 (1996) 5 99 S. Ct. 1355

59 L. Ed. 2d 587 (1979) 16, 21

McCoy _v. Court of Appeals of Wisconsin |

486 U.S. 429 |

108 S. Ct. 1895 475 U.S. 157

100 L. Ed. 2d 440 (1988) 26 106 S. Ct. 988

89 L. Ed. 2d 123 (1986) 7

McKane v. Durston

153 U.S. 684 ogden. San Juan County

14 S. Ct. 913 32 F.3d 452 (10th Cir. 1994)

38 L. Ed. 867 (1894) 4 cert. denied, 513 U.S. 1090

| 1158. ct. 750 |

130 L. Ed. 2d 650 (1995) 22

ix x

507 U.S. 234

113 S. Ct. 1199

122 L. Ed. 2d 581 (1993)

302 U.S. 319

58 S. Ct. 149

82 L. Ed. 288 (1937)

481 U.S. 551

107 S. Ct. 1990

95 L. Ed. 2d 539 (1987)

People v. Acosta

48 Cal. App. 4th 411

55 Cal. Rptr. 2d 675 (1996)

59 Cal. 2d 339

379 P.2d 496

29 Cal. Rptr. 16 (1963)

cert. denied, 374 U.S. 819

83 S. Ct. 1714

10 L. Ed. 2d 1084 (1963)

21 Cal. 3d 513

579 P.2d 1043

146 Cal. Rptr. 727 (1978)

People v. Denison

68 Cal. App. 4th 1283A

79 Cal. Rptr. 2d 524 (1998)

People v. Grey

225 Cal. App. 3d 1336

275 Cal. Rptr. 572 (1990)

People vy. Harris

19 Cal. App. 4th 709

23 Cal. Rptr. 2d 586 (1993)

19 Cal. 4th 550

967 P.2d 29

79 Cal. Rptr. 2d 816 (1998)

TABLE OF AUTHORITIES, CONT'D

People v. Mitchell

68 Cal. App. 4th 1489

81 Cal. Rptr. 2d 339 (1999)

People v. Scott

64 Cal. App. 4th 550

75 Cal. Rptr. 2d 315 (1998)

71 Mich. App. 33

246 N.W.2d 429 (Mich. App. 1976)

110 S. Ct. 2603

110 L. Ed. 2d 283 (1990)

334 U.S. 266

68 S. Ct. 1049

92 L. Ed. 1356 (1948) |

384 U.S. 305

86 S. Ct. 1497

16 L. Ed. 2d 577 (1966)

483 U.S. 44

107 S. Ct. 2704

97 L. Ed. 2d 37 (1987)

517 U.S. 620

116 S. Ct. 1620

134 L. Ed. 2d 855 (1996)

417 U.S. 600

94 S. Ct. 2437

41 L. Ed. 2d 341 (1974)

464 U.S. 114

104 S. Ct. 453

78 L. Ed. 2d 267 (1983)

Pierce v. State

777 S.W.2a 399 (Tex. Crim. App. 1989)

, 496 U.S. 912

xii

10,

20, 26

17-19

12, 25

TABLE OF AUTHORITIES, CONT'D

San Antonio Ind. Sch. Dist. v. Rodriguez

411 U.s. 1

93 S. Ct. 1278

36 L. Ed. 2d 16 (1973)

San Antonio Independent School Dist. v. Rodriguez

411 U.S. 1

93 S. Ct. 1278

36 L. Ed. 2d 16 (1973)

Schrier v. Halford

60 F.3d 1309 (8th Cir. 1995)

291 U.S. 97

54 S. Ct. 330

78 L. Ed. 674 (1934)

Sonnier y. State

913 S.W.2d 511 (Tex. Crim. App. 1995)

State vy. Cole

629 S.W.2d 915 (Tenn. Crim. App. 1981)

State v. Gillespie

6898 S.W.2d 738 (Tenn. Crim. App. 1994)

104 N.M. 218

719 P.2d 445 (N.M. App. 1986)

State v. Reeves

610 S.W.2d 730 (Tenn. Crim. App. 1980)

305 Ark. 125

810 S.W.2d 27 (Ark. 1991)

State vy, Warner

594 So. 2d 397 (La. App. 1991)

Superintendent. Massachusetts Correctional Institution,

Walpole vy. Hill

472 U.S. 445

105 S. Ct. 2768

86 L. Ed. 2d 356 (1985)

xiii

PE CR ee oe

cert. denied

105 S. Ct. 926

386 U.S. 258

87 S. Ct. 996

18 L. Ed. 2d 33 (1967)

U.S. v. Smith

907 F.2d 42 (6th Cir. 1990)

, 498 U.S. 986

111 S. Ct. 521

112 L. Ed. 2d 533 (1990)

718 F.2d 226 (7th Cir. 1983)

712 F. Supp. 662 (N.D. Ill. 1989)

ba -Fo3d 1263, (i0th Cir. 1996)

baa'F-2a 1356 (ath Cir, 1976)

B74 Fad 669 (9th Cir- 1989)

713 F-24549 (ath Cir- 1985)

145 F-3d 771 (eth Cir. 1998)

426 U.S. 317

96 S. Ct. 2086

48 L. Ed. 2d 666 (1976)

United States v. Merrill]

746 F.2d 458 (9th Cir. 1984)

, 469 U.S. 1165

83 L. Ed. 2d 938 (1985)

United States v. Sammons

918 P:2d 592 (6th Cir. 1990)

United States v. Spence

992 F. Supp. 1413 (S.D. Ga. 1998)

xiv

TABLE OF AUTHORITIES, CONT'D

United States v. Wagner

158 F.3d 901 (Sth Cir. 1998)

United States v. Wilson

690 F.2d 1267 (9th Cir. 1982)

cert. denied, 464 U.S. 867

104 S. Ct. 205

78 L. Ed. 2d 178 (1983)

521 U.S. 793

117 S. Ct. 2293

138 L. Ed. 2d 834 (1997) 4,

Walters v. National Ass'n of Radiation Survivors

473 U.S. 305

105 S. Ct. 3180

87 L. Ed. 2d 220 (1985)

521 U.S. 702

117 S. Ct. 2258

138 L. Ed. 2d 772 (1997)

Weatherly v. State

704 S.W.2d 730 (Tenn. Crim. App. 1985)

274 Ind. 540

412 N.E.2d 790 (Ind. 1980)

Webb v. State

533 S.W.2d 780 (Tex. Crim. App. 1976)

Wells vy. Brown

891 F.2d 591 (6th Cir. 1989)

494 U.S. 113

110 S. Ct. 975

108 L. Ed. 2d 100 (1990)

14,

TABLE OF AUTHORITIES, CONT'D

Constitutional Provisions

United States Constitution *

Sixth Amendment 6, passim

Fourteenth Amendment 6-8, 13

Statutes

California Code of Civil Procedure

§ 904.1 17

California Penal Code

§ 503 1

§ 667 (d) 1

§ 667 (e) (2) 1

§ 1170.12 (b) 1

§ 1170.12(c) (2) 1

§ 1235 17

§ 1237 17

§ 1237.5 18

§ 1240.1(b) 18

§ 1255 19

§ 1466 17

Court Rules

California Rules of Court

rule 31 18

rule 76.5(d) 18

rule 470 18

Other Authorities

9 Witkin, Cal. Procedure (4th ed. 1997), Appeal, § 2 17

Standards of Judicial Administration

§ 20 18

xvi

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

No. 98-7809

SALVADOR MARTINEZ,

Petitioner,

V «

COURT OF APPEAL OF CALIFORNIA,

Respondent.

Petitioner, who proceeded in pro se of his trial, was

convicted by a jury of the fraudulent appropriation of the

property of another in violation of California Penal Code

section 503. The jury also found true that Petitioner had

suffered three prior strike convictions within the meaning of

California Penal Code sections 667(d), 667(e) (2), 1170.12(b),

and 1170.12(c) (2). As a result, Petitioner's sentence for his

new crime was twenty-five years to life in state prison.

On September 3, 1998, Petitioner filed a notice of

appeal. On October 16, 1998, Petitioner's request to proceed

in pro se was denied by the California Court of Appeal, Fourth

Appellate District, Division Three. In doing so, the court

cited to In re Walker, 56 Cal. App. 3d 225, 128 Cal. Rptr. 291

(1976).

On October 27, 1998, Petitioner filed a petition for

writ of mandate with the California Supreme Court in case

number S074340. On November 18, 1998, the petition was

denied.

Petitioner filed his Petition for a Writ of Certiorari

on December 29, 1998. On January 14, 1999, the California

Court of Appeal, Fourth Appellate District, Division Three,

granted Petitioner's request for a stay of his appeal pending

the ruling by this Court on the Petition for Writ of

Certiorari.

REASONS FOR DENYING THE WRIT

THE DECISION BELOW IS CORRECT AND CALIFORNIA'S

APPELLATE REVIEW PROCESS COMPLIES WITH THE DUE

PROCESS AND EQUAL PROTECTION CLAUSES

California courts have consistently and properly ruled

that a criminal appellant has no federal constitutional right

to elect self-representation on appeal.” Scott, 64 Cal. App.

4th at 554; In re Walker, 56 Cal. App. 3d 225, 128 Cal. Rptr.

291 (1976).

The writ should be denied because the decision below

was correct; California's appellate process comports with due

process and equal protection, and the Constitution does not

recognize a right to elect self-representation on appeal.

A. There Is No Constitutional Right To Elect Self-

Representation On Appeal

There is nothing in the text of the Constitution which

guarantees to a criminal defendant the right to elect

self-representation on appeal.

1. The California Supreme Court in People v. Massie, 19

Cal. 4th 550, 570, 967 P.2d 29, 42, 79 Cal. Rptr. 2d 816

(1998), citing to the decision in People v. Scott, 64 Cal.

App. 4th 550, 554, 75 Cal. Rptr. 2d 315, 318 (1998), agreed

that this Court's decision in Faretta v. California, 422 U.S.

806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), did pot grant a

constitutional right to elect self-representation on appeal.

This Court looks to the text of the Constitution, not

the purported “importance” of the asserted right, when

deciding whether an asserted right is “fundamental.” Sap

Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1,

33-35, 93 S. Ct. 1278, 1297-98, 36 L. Ed. 2d 16 (1973); gee

also, Vacco v. Ouill, 521 U.S. 793, 799-800, 117 S. Ct. 2293,

2297, 138 L. Ed. 2d 834 (1997). "The Due Process Clause does

not demand uniformity of procedure, each State is free to

devise its own way of securing essential justice in these

situations.” Hygler vy. State of Florida, 315 U.S. 411, 416-

17, 62 S. Ct. 688, 691, 86 L. Ed. 932 (1942). Thus, states

are "free to devise their own systems of review in criminal

cases," the "[p])rocedural details for securing fairness” are

left to the states, and the manner in which a state chooses to

adjudicate claims is afforded wide discretion, “so long as

they observe those ultimate dignities of man which the United

States Constitution assures.” Carter v. People of State of

Lilineig, 329 U.S. 173, 176, 67 S. Ct. 216, 219, 91 L. Ed. 172

(1946).

In determining whether a right is “fundamental,” the

Court has admonished courts not to take an “expansive view” of

the “authority to discover new fundamental rights imbedded in

the Due Process Clause,” and has further admonished that there

should be “great resistance to expand the substantive reach of

those Clauses, particularly if it requires redefining the

category of rights deemed to be fundamental.” Bowers v.

Hardwick, 478 U.S. 186, 194-95, 106 S. Ct. 2841, 2846, 92 L.

Ed. 2d 140 (1986).

2. There is no constitutional right to an appeal

Over a century ago, this Court held that the

Constitution does not require states to grant appeals as of

right to criminal defendants seeking to review alleged trial

court errors, and that the right of review in an appellate

court is purely a matter of State concern. Koh] _v. Lehlback,

160 U.S. 293, 299, 16 S. Ct. 304, 40 L. Ed. 432 (1895); McKane

v. Durston, 153 U.S. 684, 687-88, 14 S. Ct. 913, 915, 38 L.

Ed. 867, 868 (1894). “Indeed, for a century after the Court

was established, no appeal as of right existed in criminal

cases, and, as a result, appellate review of criminal

convictions was rarely allowed.” Abney v. United States, 431

U.S. 651, 656, 97 S. Ct. 2034, 2038, 52 L. Ed. 2d 651 (1977).

In the over 100 years since the Court's decision in

McKane, this Court has never retreated from its holding that

a criminal defendant has no constitutional right to an appeal,

and that it is wholly within the discretion of the states

whether to allow such a review. Johnson v. Fankel]l, 520 U.S.

911, 922-23, n.13, 117 S. Ct. 1800, 1807, n.13, 138 L. Ed. 2d

108 (1997); M.L.B. v. S.L.J., 519 U.S. 102, 110, 117 S. Ct.

555, 560, 136 L. Ed. 2d 473 (1996); Goeke v. Branch, 514 U.S.

115, 120, 115 S. Ct. 1275, 1278, 131 L. Ed. 2d 152 (1995);

Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312, 77

L. Ed. 2d 987 (1983); Abney, 431 U.S. at 656; United States v.

MacCollom, 426 U.S. 317, 323, 96 S. Ct. 2086, 2091, 48 L. Ed.

2d 666 (1976); Estelle v. Dorrough, 420 U.S. 534, 536-38, 95

S. Ct. 1173, 1175-76, 43 L. Ed. 2d 377 (1975) [per curiam) ;

Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100

L. Ed. 891 (1956).

3. Acriminal defendant has no constitutional right

to be present at or arque an appeal

In Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct.

1049, 1060, 92 L. Ed. 1356 (1948), this Court held a criminal

defendant has no constitutional right to be present at or

argue his appeal, and "“sharp[ly] contrast[ed)” this with the

constitutional right to be “present in person at each

significant stage of a felony prosecution, and to his

recognized privilege of conducting his own defense at the

trial.” Indeed, while this Court in Faretta recognized a

criminal defendant's right to represent himself at trial under

the Sixth and Fourteenth Amendments to the Constitution, the

Court specifically distinguished the federal constitutional

nature of defendant's right to conduct his own defense at the

trial level from other appellate stages of the judicial

process. Faretta, 422 U.S. at 816.

That a criminal defendant has no constitutional right

to be present at or argue his appeal significantly contrasts

with the constitutional right to be present during all

critical stages of trial, Kentucky v. Stincer, 482 U.S. 730,

744, 107 S. Ct. 2658, 2667, 96 L. Ed. 2d 631 (1987); Rushen v.

—Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 455, 78 L. Bd. 2d

267 (1983); Faretta, 422 U.S. at 820, n.15; Snyder v.

Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L.

Ed. 674 (1934), and the constitutional right to present his

own testimony at trial, Rock v. Arkansas, 483 U.S. 44, 51-53,

107 S. Ct. 2704, 2708-09, 97 L. Ed. 2d 37 (1987); Nix v.

Whiteside, 475 U.S. 157, 164, 106 S. Ct. 988, 993, 89 L. Ed.

2d 123 (1986); Brooks v. Tennessee, 406 U.S. 605, 612, 92 S.

Ct. 1891, 1895, 32 L. Ed. 2d 358 (1972); Harris v. New York,

401 U.S. 222, 225, 91 S. Ct. 643, 645, 28 L. Ed. 24 1 (1971);

in.xre Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 507, 92 L. Ed.

682 (1948).

This Court's decisions demonstrate that the rights,

remedies, and procedures granted a criminal defendant by a

state's appellate review flow from the Fourteenth Amendment

Due Process and Equal Protection Clauses, which demand the

effective assistance of retained or appointed appellate

counsel. They do not derive from the Sixth Amendment, the

foundation of Faretta.

In Griffin, the Court held that a transcript of the

trial court proceedings must be provided to an indigent

criminal appellant if that was the only way to ensure an

“adequate and effective” appeal. Griffin, 351 U.S. at 13-14.

In doing so, the Court recognized that while a state had no

constitutional obligation to provide appellate review, if the

state chose to create such a right, the Due Process and Equal

Protection Clauses protected indigent criminals from

“invidious discriminations.” JId., at 18.

In 1963, this Court in Douglas v. California, 372 U.s.

353, 356-58, 83 S. Ct. 814, 816-17, 9 L. Ed. 2d 611 (1963),

held that when a state in its discretion created a right to an

appeal, it must provide counsel, basing such a right not on

the Sixth Amendment, but on the Fourteenth Amendment, which

required the state to make the appeal more than a "meaningless

ritual” by supplying an indigent appellant with counsel. id...

at 358.

On the same day, this Court held that the right of an

indigent defendant to counsel at trial flowed from the

explicit grant of that specific right in the Sixth Amendment,

made applicable to the states through the Due Process Clause

of the Fourteenth Amendment. Gideon vy. Wainwright, 372 U.s.

335, 339, 863 S. Ct. 792, 794, 9 L. Ed. 2d 799 (1963).

In Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S. Ct.

1497, 15C0, 16 L. Ed. 2d 577 (1966), this Court summarized the

Griffin line of decisions and held, without reference to the

Sixth Amendment, that while the Court had never held that the

States are required to establish avenues of appellate review,

these avenues once established, “must be kept free of

unreasoned distinctions that can only impede open and equal

access to the courts.” Requiring counsel on first appeal does

not impede this.

Indeed, subsequently, this Court held the appellate

attorney appointed must be available to assist in preparing

and submitting a brief to the appellate court, Swenson v.

Bosler, 386 U.S. 258, 259, 87 S. Ct. 996, 997, 18 L. Ed. 2d 33

(1967), and must play the role of an active advocate, rather

than a mere friend of the court assisting in a detached

evaluation of the appellant's claim, Entsminger v. Iowa, 386

U.S. 748, 750-51, 87 S. Ct. 1402, 1403, 18 L. Ed. 2d 501

(1967); Anders v. California, 386 U.S. 738, 743-45, 87 S. Ct.

1396, 1399-400, 18 L. Ed. 2d 493 (1967).

In Ross v. Moffitt, 417 U.S. 600, 94 S. Ct. 2437, 41 L.

Ed. 2d 341 (1974), this Court held that the states were left

to decide whether to provide counsel to indigent state

defendants in their discretionary appeals. In doing so, this

Court acknowledged that the rationale for the Griffin and

Douglas line of cases had "never been explicitly established”

and that "some support” was found in both the Due Process and

—- = er a ee em

2 Oe eee —-

Equal Protection Clauses. Ross, 417 U.S. at 608-09. This

Court in Ross again recognized the critical differences

between the trial and appellate stages. Id., at 610-11.

In the year following Moffitt, this Court in Faretta

recognized a criminal defendant had a corollary fundamental

constitutional right, flowing directly from the Sixth

Amendment right to counsel at trial, to represent himself at

trial without assistance of counsel. fFaretta, 422 U.S. at

818-33. The recognition of this right in Faretta was “based

on the long-standing recognition of a right of self-

representation in federal and most state courts, and on the

language, structure, and spirit of the Sixth Amendment.”

McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 978,

79 L. Ed. 2d 122 (1984).

In Jones, this Court held a criminal defendant had no

constitutional right to have appellate counsel raise every

nonfrivolous issue the defendant requests, and that it was

appellate counsel, and not his client, who decided the issues

to be presented, even over his client’s objections. Jones,

463 U.S. at 751-54.

In Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L.

Ed. 2d 821 (1985), this Court held a state could not penalize

a criminal defendant by dismissing his first appeal as of

right when appointed counsel failed to follow mandatory

appellate rules, and that the right to appellate counsel meant

the right to "effective assistance.” Id., at 396.

Finally, in 1997, this Court in Johnson, once again

repeated that prior decisions "made it quite clear that it is

a matter for each State to decide how to structure its

judicial system,” and that respect for the fundamental

principles of federalism is at its apex when the Court is

confronted with a claim "that federal law requires a Siete to

undertake something as fundamental as restructuring the

operation of its courts." Johnson, 520 U.S. at 922-23,

The considerations and justifications for self-

representation at trial do not lend themselves to a criminal

appeal. At trial, unlike an appeal, the state’s desire is to

transform a criminal defendant from a person presumed innocent

to one found guilty beyond a reasonable doubt. In order to

accomplish this purpose, the prosecuting attorney presents

evidence and witnesses, cross-examines, contradicts and

2. In Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.

Ct. 1990, 95 L. Ed. 2d 539 (1987), the Court declined to

extend the right to appointed appellate counsel beyond the

appointment of counsel to represent the criminal defendant in

his first appeal as of right. In Austin v. United States, 513

U.S. 5S, 6-8, 115 S. Ct. 380, 130 L. Ed. 2d 219 (1994), this

Court held that the constitutional right of indigent

defendants pursuing appeals as of right to a brief filed on

their behalf by an attorney did not extend to forums for

discretionary review, and an attorney may be relieved of the

duty to file frivolous petitions.

v 9a

challenges defense witnesses, challenges and argues rulings of

the court, and directs arguments to both the court and jury in

order to convince them of the defendant 's-guilt.

In contrast, it is generally the criminal defendant,

rather than the state, who initiates the appellate process,

seeking to overturn the court or jury's guilty verdict, rather

than fending off the efforts of the state's prosecutor. The

criminal defendant under these circumstances needs an

appellate attorney not, as he does at trial, to shield him

from being “hauled into court” by the state and stripped of

his presumption of innocence, but instead as a "sword" to

upset the prior determination of guilt. Ross, 417 U.S. at

611.

This difference is significant for, while no one

would agree that the State may simply dispense with the

trial stage of proceedings without a criminal

defendant's consent, it is clear that the State need

not provide any appeal at all.

This cCourt’s decisions recognize that a criminal

appellant's right to due process is protected only if he is

represented by counsel in his appeal. However, these due

process concerns are undermined, and not furthered, by

permitting the criminal appellant to elect self-

representation.

- In this regard, in both Faretta and Gideon, the right

to counsel and self-representation at trial were based upon an

historical and textual analysis of the Sixth Amendment, which

commands, protects, and guarantees the right to counsel and

self-representation at trial.

However, as stated above, a criminal defendant's right

to the effective assistance of appointed or retained counsel

on_appeal, announced by this Court in Douglas, Anders,

Swenson, Rinaldi, Moffitt, and Evitts, flows not from the

Sixth Amendment but instead from the broader and flexible

protections of the Fourteenth Amendment guarantees of due

process and equal protection. Blandino v. State, 112 Nev.

352, 914 P.2d 624, 626 (Nev. 1996), cert. denied, 519 U.S.

881, 117 S. Ct. 208, 136 L. Ed. 2d 143 (1996).

This distinction is significant, for the Due Process

and Equal Protection Clauses, unlike the strict commands of

the Sixth Amendment, generally focus on the reliability or

fairness of the process. Gilbert v.Homar, 520 U.S. 924, 930,

117 S. Ct. 1807, 1812, 138 L. Ed. 2d 120 (1997); Cafeteria

Workers v. McElroy, 367 U.S. 886, 894-95, 81 S. Ct. 1743,

1748, 6 L. Ed. 2d 1230 (1961). In this regard, "due process

is flexible and calls for such procedural protections as the

particular situation demands.” Morrissey v. Brewer, 408 U.S.

471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972); gee

also, Gilbert, 520 U.S. at 930; Zinermon v. Burch, 494 U.S.

113, 127, 110 S. Ct. 975, 984, 108 L. Ed. 2d 100 (1990);

Walters v. National Ass'n of Radiation Survivors, 473 U.S.

305, 320, 105 S. Ct. 3180, 87 L. Ed. 2d 220 (1985);

Superintendent, Massachusetts Correctional Institution,

Walpole v. Hill, 472 U.S. 445, 454, 105 S. Ct. 2768, 2773, 86

L. Ed. 2d 356 (1985).

Thus, the due process guarantee, unlike the Sixth

Amendment's guarantee of the right to counsel and self-

representation at trial, is meant to "minimize the risk of

erroneous decisions,” and "the quantum and quality of the

process due in a particular situation depend upon the need to

serve the purpose of minimizing the risk of error."

Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 13, 99 S. Ct. 2100, 2106, 60 L. Ed. 2d

668 (1979). The flexibility of due process is "a recognition

that not all situations calling for procedural safeguards call

for the same kind of procedure." Morrissey, 408 U.S. at 481.

To determine what procedural protections the

Constitution requires in a particular case, the Court weighs

several factors: (1) the interest that will be affected by

the official action; (2) the risk of an erroneous deprivation

of such interest through the procedures used, and the probable

value, if any, of additional or substitute procedural

safeguards; and (3) the government's interest, including the

function involved and the fiscal and administrative burdens

that the additional or substitute procedural requirement would

entail. Zinermon, 494 U.S. at 127.

In defining the process necessary to ensure

"fundamental fairness” the Court has recognized that the Due

Process Clause does not require that the procedures used are

"*so comprehensive as to preclude any possibility of error,’'”

and that "the marginal gains from affording an additional

procedural safeguard often may be outweighed by the societal

cost of providing such a safeguard.” Walters, 473 U.S. at

320.

The Due Process Clause protects only those "fundamental

rights and liberties” which are "deeply rooted in this

Nation's history and tradition,” and "implicit in the concept

of ordered liberty,” such that "neither liberty nor justice

would exist if they were sacrificed.” Washington v.

Glucksberg, 521 U.S. 702, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d

772 (1997), citing Moore v. City of East Cleveland, Ohio, 431

U.S. 494, 503, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977); Palko

v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed.

288 (1937); and Snyder, 291 U.S. at 105; gee also, Bowers, 478

U.S. at 193-94.

More recently, this Court has held an action violates

due process if it "shocks the conscience” and was so “brutal”

that it violates the "decencies of civilized conduct.” County

of Sacramento v. Lewis, 523 U.S. 833, 1717, 118 S. Ct. 1708,

1716-17, 140 L. Ed. 2d 1043 (1998).

In dealing with challenges to a state's regulation of

the right of appeal in criminal cases, the Court applies the

traditional rational-basis test. Estelle, 420 U.S. at 538;

Rinaldi, 384 U.S. at 309. Under the rational basis test:

If a legislative classification or distinction

"neither burdens a fundamental right nor targets a

suspect class, [the Court] will uphold [it] so long as

it bears a rational relation to some legitimate end.”

Vacco, 521 U.S. at 799, citing Romer v. Evans, 517 U.S. 620,

631, 116 S. Ct. 1620, 1627, 134 L. Ed. 2d 855 (1996).

[A] classification “must be upheld against equal

protection challenge if there is any reasonably

conceivable state of facts that could provide a

rational basis for the classification,” [the) statute

is presumed constitutional, [and) "(t]he burden is on

the one attacking the legislative arrangement to

negative every conceivable basis which might support

it,” whether or not the basis has a foundation in the

record.

Heller vy. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 2642-43,

125 L. Ed. 2d 257 (1993).

"Generally speaking, laws that apply evenhandedly to

all ‘unquestionably comply’ with the Equal Protection Clause.”

Vacco, 521 U.S. at 800; New York City Transit Authority v.

Beazer, 440 U.S. 568, 587-88, 99 S. Ct. 1355, 1366-67, 59 L.

Ed. 2d 587 (1979). A classification not involving fundamental

rights nor proceeding along suspect lines is accorded a

"strong presumption of validity.” Heller, 509 U.S. at 319.

Here, as stated above, it is well-settled there is

neither a constitutional right to an appeal nor to be present

at or argue an appeal, and that a state is entitled to wide

discretion in determining its own criminal procedures.

Against this background, it is, in language the Court used in

addressing a different claimed due process right, "at best,

facetious” to claim the right to self-representation on appeal

is "‘deeply rooted in this Nation's history and tradition’ or

‘implicit in the concept of ordered liberty,'” or that to deny

self-representation on appeal "shocks the conscience” or is so

brutal as to violate "decencies of civilized conduct.”

Bowers, 478 U.S. at 194; Lewis, 523 U.S. at 1717.

In sum, there is simply no good reason to alter years

of fundamental understanding about the relationship of the

state and federal judicial processes by imposing upon the

states a constitutional requirement that they afford a

criminal appellant the right to elect self-representation.

The right to appeal a civil or criminal case in

California is statutory. Cal. Code Civ. Proc. § 904.1; Cal.

Penal Code §§ 1235, 1237, 1466; Scott, 64 Cal. App. 4th at 555

n.6; 9 Witkin, Cal. Procedure (4th ed. 1997), Appeal, § 2, p.

33. California has created various statutory and

constitutional provisions to ensure an appellant is

represented by competent counsel and is afforded due process.

People v. Grey, 225 Cal. App. 3d 1336, 1339, 275 Cal. Rptr.

572 (1990).

Rule 470 of the California Rules of Court requires

trial courts at the time of judgment and sentencing to advise

defendants convicted at trial of their appellate rights,

including the right to counsel, and the steps that must be

taken to protect those rights. Rule 31 of the California

Rules of Court provides a defendant sixty days in which to

file his notice of appeal. The defendant's trial counsel is

required to file for the indigent defendant the notice of

appeal or any statement showing reasonable constitutional,

jurisdictional or other grounds going to the legality of the

proceedings pursuant to California Penal Code sections 1237.5

and 1240.1(b). Scott, 64 Cal. App. 4th at 563-64.

The appointment of counsel for indigent appellants in

criminal cases is administered by an independent agency in the

Fourth Appellate District, Appellate Defenders Inc. ("ADI"),

which performs administrative functions in connection with the

appointment of appellate counsel. Jn re Angelica V., 39 Cal.

App. 4th 1007, 1014, 46 Cal. Rptr. 2d 295 (1995). Pursuant to

rule 76.5(d) of the California Rules of Court, the state

appellate courts are relieved of the duty of assuring the

quality of appointed counsel under the guidelines in section

20 of the Standards of Judicial Administration, because the

qualified attorneys in ADI are required to "consult with and

assist appointed counsel concerning the issues on appeal and

appellant's opening brief.” Angelica V., 39 Cal. App. 4th at

1014.

A criminal appellant in California, like a criminal

appellant in a federal court, has neither a constitutional nor

statutory right to argue his case on appeal or to be present

during such proceeding. Cal. Penal Code § 1255; People v.

Ashley, 59 Cal. 2d 339, 361, 379 P.2d 496, 29 Cal. Rptr. 16

(1963), cert. denied, 374 U.S. 819, 83 S. Ct. 1714, 10 L. Ed.

2d 1084 (1963); Walker, 56 Cal. App. 3d at 228.

In California, to meet the obligations of a competent

advocate, appellate counsel has a duty to prepare a legal

brief containing citations to the appellate record and

appropriate authority, discuss all material facts, set forth

all arguable issues, provide an adequate appellate record and

advocate changes in the law if argument can be made supporting

change. People v. Barton, 21 Cal. 3d 513, 519, 579 P.2d 1043,

146 Cal. Rptr. 727 (1978); Scott, 64 Cal. App. 4th at 564;

People v. Acosta, 48 Cal. App. 4th 411, 426, 55 Cal. Rptr. 2d

675, 683-84 (1996); People v. Harris, 19 Cal. App. 4th 709,

714, 23 Cal. Rptr. 2d 586 (1993).

A criminal appellant in California may nonetheless file

in pro se a state petition for a writ of habeas corpus raising

any and all claims he believes appellate counsel should have

raised, arguing “inexcusable failure of appellate counsel to

raise crucial assignments of error [occurred], which arguably

might have resulted in reversal." People v. Mitchel], 68 Cal.

App. 4th 1489, 1497, 81 Cal. Rptr. 2d 339, 344 (1999); gee

also, In re Jones, 27 Cal. App. 4th 1032, 1040-41, 33 Cal.

Rptr. 2d 469 (1994); In xe Spears, 157 Cal. App. 3d 1203,

1210-14, 204 Cal. Rptr. 333, 337-40 (1984).

A criminal appellant who believes his appellate counsel

was ineffective may file a state habeas petition as soon as he

or she learns or should have learned of the information

offered in support of the claim. " See, In re Robbins, 18 Cal.

4th 770, 815 n.35, 959 P.2d 311, 341 n.35, 77 Cal. Rptr. 2d

153 (1998); In xe Gallego, 18 Cal. 4th 825, 839 n.15, 959 P.2d

290, 300 n.15, 77 Cal. Rptr. 2d 132 (1998). Appellate

counsel's ineffectiveness in failing to raise a claim may be

“rectified” by raising the claim in a state petition for a

writ of habeas corpus. People vy. Denison, 68 Cal. App. 4th

1283A, 79 Cal. Rptr. 2d 524, 534 (1998).

2. Denial of self-representation on appeal comports

with due process and equal protection

California's-—,appellate process comports with the

requirements of due process and equal protection and bears a

rational relation to a legitimate end. First, as stated

above, the Court has admonished that the procedures and manner

in which a state chooses to adjudicate claims is afforded wide

discretion. Carter, 329 U.S. at 176.

Second, California's denial of self-representation on

appeal applies evenly to all criminal defendants, and thus the

denial unquestionably complies with the Equal Protection

Clause. Vacco, 521 U.S. at 793; Beazer, 440 U.S. at 587-88.

Third, the creation of a constitutional right to elect

self-representation on appeal raises a series of problematic

subsidiary questions, including whether and when the criminal

appellant must be given notice of this right, how the right is

measured, when must he decide, can he change his mind, and

whether the court must treat the self-represented criminal

appellant differently and relax or enact different rules.

While these concerns were at issue in regards to the

recognition of the right to self-representation at trial,

Paretta, 422 U.S. at 852 [Blackmun, J. dissenting), as set

forth above, the right to appeal, unlike the right at trial,

is not a fundamental constitutional right, and is instead

governed by the more flexible protections of due process and

equal protection. Thus, these are appropriate matters for a

state to consider in the decision to grant or deny to the

defendant the right to self-representation on appeal.

Moreover, as stated above, it is well-settled, and

Petitioner does not dispute, that he has no right to be

present at or argue his appeal. Pet. at 22; gee, Price, 334

U.S. at 285. In addition to having no right to be present at

or ague his appeal, if the state offered appellate counsel,

and the criminal appellant nonetheless chose to represent

himself, the state would not be required to provide access to

a law library or legal materials. Lewis v. Casey, 518 U.S.

343, 351-52, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996); Bounds

vy. Smith, 430 U.S. 817, 828, 97 S. Ct. 1491, 52 L. Ed. 2a 72

(1977); gee also, Murray v. Giarratano, 492 U.S. 1, 13, 1098.

Ct. 2765, 2772, 106 L. Ed. 2d 1 (1989) [O’Conner, J.,

concurring] ["[b]eyond the requirements of Bounds, the matter

is one of legislative choice based on difficult policy

considerations and the allocation of scarce legal

resources." .*

A self-represented criminal appellant will, without a

law library or legal materials, nonetheless be required to

comply with "the relevant rules of procedural and substantive

law.” Faretta, 422 U.S. at 834, n.46; McKaskle, 465 U.S. at

173.*%

, 145 F.3d 771,

, 122 F.3d 1100,

1105 (8th Cir. 1997); , 84 F.3d 768, 769 (5th

Cir. 1996); , 75 F.3d 264, 267 (6th Cir.),

, 519 U.S. 816, 117 S. Ct. 67, 136 L. Ed. 2d 28

cert. denied

(1996); Brooks yv. Bugcher, 62 F.3d 176, 179-80 (7th Cir.

1995); Schrier v. Halford, 60 F.3d 1309, 1313 (8th Cir. 1995);

Knop_v.

Carper v. DeLand, 54 F.3d 613, 616 (10th Cir. 1995);

Johnson, 977 F.2d 996, 999 (6th Cir. 1992), cert, denied, 507

U.S. 973, 113 S. Ct. 1415, 122 L. Ed. 2d 786 (1993); United

States v. Sammons, 918 F.2d 592, 602 (6th Cir. 1990); U.S. v.

Smith, 907 F.2d 42, 45 (6th Cir. 1990), , 498 U.S.

986, 111 S. Ct. 521, 112 L. Ed. 2d 533 (1990);

, 718 F.2d 226, 231 (7th Cir. 1983);

, 690 F.2d 1267, 1271 (9th Cir. 1982),

, 464 U.S. 867, 104 S. Ct. 205, 78 L. Ed. 2d 178

(1983); , 584 F.2d 1358, 1359-60 (4th

United States v. Chatman

Cir. 1978); Brinson v. McKeeman, 992 F. Supp. 897, 910 (W.D.

Tex. 1997).

4. See, Ogden v. San Juan County, 32 F.3d 452, 455 (10th

3. See also,

778 (6th Cir, 1998);

Finally, a criminal defendant who chooses to represent

himself will waive any claim of ineffective assistance of

appellate counsel. Faretta, 422 U.S. at 835, n.46; McNeil v.

United States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed.

2d 21 (1993); McKaskle, 465 U.S. at 177, n.8. ,

One result of recognizing a right to. self-

representation on appeal will be that when the respondent and

the state court review the pleadings prepared by self-

represented criminal appellants, both will be forced to

decipher such materials and in doing so, “out of conscience, "

the state court will further be forced to wear two hats --

that of a state appellate judge and that of advocate. The

Court has held these pleadings are liberally construed, Haines

v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652

(1972), and adherence to such a policy would complicate a

state's ability to function as an effective adversary during

appellate proceedings, since the state would be expected to

Cir. 1994), cert. denied, 513 U.S. 1090, 115 S. Ct. 750, 130

L. Ed. 2d 650 (1995); Wells v. Brown, 891 F.2d 591, 594 (6th

Cir. 1989) [collecting cases where courts have required pro se

litigants to adhere to basic pleading requirements]; United

States v. Flewitt, 874 F.2d 669, 671-676 (9th Cir. 1989);

United States v. Merril], 746 F.2d 458, 465 (9th Cir. 1984),

, 469 U.S. 1165, 105 S. Ct. 926, 83 L. Ed. 2d 938

(1985).

Thus, for example, in Texas, the failure of a pro se

appellant to comply with state rules regarding the content and

form of the brief results in the summary denial of such

claims. See, e.g., Kindley v. State, 879 S.W.2d 261, 263

(Tex. App. 1994); Sonnier v. State, 913 S.W.2d 511, 520 (Tex.

Crim. App. 1995); Pierce v, State, 777 S.W.2d 399, 418 (Tex.

Crim. App. 1989), , 496 U.S. 912, 110 S. Ct. 2603,

110 L. Ed. 2d 283 (1990).

charitably evaluate the contentions raised by a criminal

appellant acting in propria persona. In this regard, the

Court may recognize and judicially notice the generally

inferior quality of pro se briefs and "the superior ability of

trained counsel in the ‘examination into the record, research

of the law, and marshaling of arguments on [the appellant's)

behalf.'” Jones, 463 U.S. at 751, citing Douglas, 372 ‘J.S. at

358. Thus, an ‘obligation to liberally construe pro per

pleadings would impair the appellate process for both the

respondent state and the reviewing appellate court.

Another result of secognizing such a right is that it

renders it more likely the defendant will lose his appeal.

See, Faretta, 422 U.S. at 834, 838, 852.*

Under these circumstances, granting a criminal

appellant a right to self-representation on appeal would be a

Pyrrhic victory. The self-represented appellant would have no

right to legal materials or counsel in order to file a brief,

and, once the brief was somehow drafted and filed without

counsel or adequate legal materials, the appellant would have

no right to be present at or argue the appeal, and would lose

any claim of ineffective assistance. Such a "Pyrrhic

S. See also, United States v. Baker, 84 F.3d 1263, 1264

(10th Cir. 1996), quoting McKaskle, 465 U.S. at 177, n.8;

, 49 F.3d 1024, 1031 (4th Cir.), cert. denied,

Fields v. Murray

516 U.S. 884, 116 S. Ct. 224, 133 L. Ed. 2d 154 (1995) ("[A)

determination in the defendant's favor here means that he

represents himself which, if anything, is more likely to

produce a conviction[.]”).

victory,” as held by one federal court addressing a different

issue, would be "cold gruel,” and would "do little to burnish

the public's perception of the judicial system.” CMM Cable

Rep., Inc. v. Ocean Coast Properties, Inc., 48 F.3d 618, 621

(lst Cir. 1995).

Moreover, even if it were good policy for California to

permit criminal defendants to represent themselves in their

direct appeal, such an idea is not mandated by the

Constitution. As Justice O’Connor, discussing whether a state

should permit_a criminal defendant access to a library or

grant him an attorney, succinctly put in her concurring

opinion in Murray, "the matter is one of legislative choice

based on difficult policy considerations and the allocation of

scarce legal resources.” Murray, 492 U.S. at 13. In our

constitutional democracy, such legislative choices are best

made by legislators who are subject to removal by the people.

See, San Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 31,

93 S. Ct. 1278, 1295, 36 L. Ed. 2d 16 (1973). A "‘mother

knows best’ approach should play no part in traditional

constitutional adjudication.” Murray, 492 U.S. at 11

(Plurality opinion of Rehnquist, C.J.].

In sum, this Court has held that unlike a trial, the

criminal defendant needs an attorney on appeal "as a sword to

upset the prior determination of guilt.” Ross, 417 U.S. at

611. Moreover, the Court has held that "[iJt is ywndeniable

that in most criminal prosecutions defendants could better

defend with counsel's guidance than by their own unskilled

efforts.” Faretta, 422 U.S. at 834, emphasis added. "The

appellate lawyer must master the trial record, thoroughly

research the law, and exercise judgment in identifying the

arguments that may be advanced on appeal.” McCoy v. Court of

Appeals of Wisconsin, 486 U.S. 429, 438, 108 S. Ct. 1895,

1901, 100 L. Ed. 2d 440 (1988). Direct appeal “is the primary

avenue for review of conviction or sentence” as "[w]hen the

process of direct review .. . comes to an end, a presumption

of finality and legality attaches to the conviction and

sentence." Barefoot v. Estelle, 463 U.S. 880, 887, 103 S. Ct.

3383, 3391, 77 L. Ed. 2d 1090 (1983).

Under these circumstances, "the services of a lawyer

will for virtually every layman be necessary to present an

appeal in a form suitable for appellate consideration on the

merits.” Evitts, 469 U.S. at 387, 393. "Capable lawyering

[on direct appeal] would mean fewer colorable claims of

ineffective assistance of counsel to be litigated on

collateral attack.” Murray, 492 U.S. at 1l.

Finally, as stated abov2, California has adequately

provided a vehicle for a erininel eppeiiont to bring before

the state court those claims not brought by appointed counsel,

through a state petition for a writ of habeas corpus.

Robbins, 18 Cal. 4th at 815, n.35; Mitchell, 68 Cal. App. 4th

at 1496-98.

California has rationally chosen to create an appellate

review process by which counsel is appointed on direct appeal,

and the criminal appellant is free to file any additional

claims in a state petition for a writ of habeas corpus. This

appellate process comports with the fundamental protections of

due process and equal protection, "promotes the efficient,

dignified operation” of the courts, Estelle, 420 U.S. at 537,

and "advances an interest in efficient, dignified appellate

practice,” Ortega-Rodrigquez v. United States, 507 U.S. 234,

241, 113 S. Ct. 1199, 1204-05, 122 L. Ed. 2d 581 (1993).

II.

THE STATES AND FEDERAL COURTS ARE DIVIDED AS

TO WHETHER A CRIMINAL APPELLANT HAS THE

CONSTITUTIONAL RIGHT TO ELECT SELF-

REPRESENTATION

The states and federal courts are divided as to whether

a criminal appellant has a constitutional right to elect self-

representation. Respondent submits that, as outlined above,

the most persuasive authorities, including California,

Nevada,* Tennessee,” Maryland,* Florida*® and the Fourth™®

and Seventh Circuits” have found no such right in the text

of the Constitution. Some other jurisdictions have had

contrary views.”

6. Blandino, 914 P.2d at 626. ‘

7. State v. Gillespie, 898 S.W.2d 738, 741 (Tenn. Crim.

App. 1994); Weatherly v. State, 704 S.W.2d 730, 731 (Tenn.

Crim. App. 1985); State v. Cole, 629 S.W.2d 915, 917 (Tenn.

Crim. App. 1981); State v. Reeves, 610 S.W.2d 730, 731 (Tenn.

Crim. App. 1980).

A.2d 191, 194 (Md. App. 1976).

9. Hill _v. State, 656 So. 2d 1271, 1272 (Fla. 1995).

10. United States v. Gillis, 773 F.2d 549, 559-60 (4th

Cir. 1985).

11. Lumbert v. Finley, 735 F.2d 239, 245-46 (7th Cir.

1984).

12. . Texas: Webb v. State, 533 S.W.2d 780, 783 (Tex.

Crim. App. 1976); Hathorn v. State, 848 S.W.2d 101, 123 (Tex.

Crim. App. 1992); New Mexico: State v. Lewis, 104 N.M. 218,

719 P.2d 445, 447-48 (N.M. App. 1986); Michigan: People v.

, 71 Mich. App. 33, 246 N.W.2d 429, 432 (Mich. App.

1976); Arkansas: Gidron v. State, 312 Ark. 517, 850 S.W.2d

331, 332-33 (Ark. 1993); State v. Van Pelt, 305 Ark. 125, 810

S.W.2d 27 (Ark. 1991); Pennsylvania: Com. v. Rogers, 537 Pa.

581, 645 A.2d 223, 224 (Pa. 1994); Louisiana: State v. Warner,

594 So. 2d 397, 402 (La. App. 1991); Indiana: Webb v. State,

274 Ind. 540, 412 N.E.2d 790, 792 (Ind. 1980); Campbell] v.

Blodgett, 940 F.2d 549 (9th Cir. 1991) (but see, Hines v.

, 30 Md. App. 628, 354

Petitioner presents no issue worthy of discretionary

review by this Court. It is well-settled that there is

neither a constitutional right to an appeal nor to be present

at or argue an appeal, and that a state is entitled to wide

discretion in determining its own criminal procedures. -There

is nothing explicit or implicit in the Constitution or in this

Court's Faretta decision which grants to a criminal appellant

a constitutional right to elect self-representation, and the

denial of the right is reviewed under the rational basis test.

In light of the important interests of the criminal appellant,

the state, and the courts, there is a rational basis for the

/// ‘

///

Enomoto, 658 F.2d 667, 677 (9th Cir. 1981)); Chamberlain v.

Ericksen, 744 F.2d 628, 630 (8th Cir. 1984), cert. denied, 470

U.S. 1008, 105 S. Ct. 1368, 84 L. Ed. 2d 387 (1985); United

States v. Wagner, 158 F.3d 901, 902 (Sth Cir. 1998); Myers v.

Johnson, 76 F.3d 1330, 1333-34 (Sth Cir. 1996); Myers v.

Collins, 8 F.3d 249, 252 (Sth Cir. 1993); Gomez v. Collins,

993 F.2d 96, 97 (Sth Cir. 1993); United States v. Spence, 992

F. Supp. 1413 (S.D. Ga. 1998); United States ex rel. Williams

v. O'Leary, 712 F. Supp. 662, 665 (N.D. Ill. 1989);

Horton v. Dugger, 895 F.2d 714, 718 (11th Cir. 1990) (Eleventh

Circuit discussed the issue, but did not decide whether there

was a constitutional right to seif-representation on appeal

because "appellant presented no evidence to the district court

that he did not desire to be represented by counsel on

appeal.”).

refusal to permit self-representation on appeal, and this

denial comports with the requirements of due process and equal

protection. Accordingly, the Petition for a Writ of

Certiorari should be denied.

Dated: March 18, 1999.

Respectfully submitted,

BILL LOCKYER

Attorney General

DAVID P. DRULINER

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

LAURA WHITCOMB HALGREN

Supervising Deputy Attorney General

(222 wn, 42

ROBERT M. FOSTER

Supervising Deputy Attorney General

Counsel of Record

Counsel for Respondent

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