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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 152

## Text

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?

I.

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

ie

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

ii

11

12

17

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

17

20

28
29

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)

iv

5,

13,

15,

11

26

28

22

17

22

22

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)

4,

15,

13

28

28

22

20

29

25

28

17

22

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)

vi

24

3, passim

13,

24

28

14

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

ee

- — 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,

3,

10,

29

19

19

11

24

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)

xi

27

15

11

19

19

19

20

18

19

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

3,

10,

20, 26

17-19

28

23

16

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

25

22

15

23

28

28

28

28

28

28

14

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

28

22

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,

14,

29

22

21

15

15

28

28

28

23

15

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

I.

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.

3

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

4

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.

10

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.

11

v 9a

ee

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

12

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

13

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

14

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).

15

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

16

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

17

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

18

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

19

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

21

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).

23

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[.]”).

24

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

25

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).

27

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).

8.
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.

28

, 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
/// ‘

///
///
///
///

i

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.”).

29

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

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0299%3A03. Public record. Not legal advice.