Amicus Curiae Brief — Ross v. Moffitt

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TABLE OF CONTENTS

Page

Inrexest OF Amicus CURIAE 2 1

QUESTIONS PRESENTED 22s 6

ConsTITUTIONAL Provisions ANp STATUTES INVOLVED _._...... 7

SraTeMENT Or THE CASE ooo cece 11

ARGUMENT:

I. The United States Court Of Appeals For The Fourth

- Circuit Erred In This Case In Ruling That A State Must

As A Constitutional Right, Provide Counsel At Every

Stage In The Appellate Process From A Criminal ‘Con-

viction, Including The Discretionary Portion Of A Two-

Tier Appellate System And For The Seeking Of Review

In This Honorable Court. 22000. cccecoeceeeceeeeeeelen 12

II. If This Honorable Court Determines That The Sixth And

Fourteenth Amendments To The Constitution Of The

United States Mandate The Provision Of Counsel. To

Assist Indigent State Prisoners In Perfecting Review Of

Their Convictions By This Court, Your Honors Should

Also Reconsider The Weight And Effect That Such A Re-

view Will Have On The Finality Of Criminal Proceedings

By Holding That The Denial Of Certiorari Constitutes A

Determination That The Prisoner Is Not In Custody In

Violation Of Federal Constitutional Law So As To Pre-

clude Federal Habeas Corpus Relief Or, At The Very

Least, Reconsider The Court’s Holding In Fay v. Noia,

372 U.S. 391, 435 (1963), That A State Prisoner Need

Not Seek Certiorari In Order To Have Fully Exhausted

His Available State Court Remedies... 17

Pertimanon . _ . 21

Ceetiricate Or Servicé 22

TABLE OF CITATIONS

Cases

Agoston v. Pennsylvania, 340 U.S. 844 (1950) 200... 18

Brown v. Allen, 344 U.S. 443 (1953) 222222... eeeeeeeeeeee ee. 1B

Douglas v. California, 372 U.S. 353 (1963) -..0.-.0.2.eeeee een. 14

Drumm v. California, 373 U.S. 947 (1963) ......-2-..-2222:.0cce-ceeecssene 16

Epton v. New York, 390 U.S. 29 (1968) ........------- epee 2

Fay v. Noia, 372 U.S. 391 (1963) occsccsccscssssseeseeessteeeece coe W

In re Diaz, 373 U.S. 947 (1963) ........... sdsstanis Esta sseincbwiciernacamieicness sins 16

In re Jacobs, 373 U.S. 947 (1963) ..........--.-.:.ecesessceeeseeeeececeseeneesnneee 16

In re Turner, 373 U.S. 947 (1963) .....--cce--ccceesccsseescsneeeeesseeeessetnsene 16

Maryland v. Baltimore Radio Show, 338.U.S. 912 (1950) ........... 18

Moffitt v. Ross, 483 F.2d 650 (4th Cir. 1973) 2020222202222. J, 12

Mooney v. New York, 373 U.S. 947 (1963) ~....22-2---20-222-220ccesccooe 16

Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969) 2200. 3

Ohio ex rel. Eaton v. Price, 360 U.S. 246 (1959) ccc 18

Oppenheimer v. California, 374 U.S. 819 (1963) ....0...0.ccceecccen 16

Petérs w. Cox, 341 F.2d 575 (10th Cir. 1965) .............. er 12, 13

Rosenberg v. United States, 344 U.S. 889 (1952) -..002...20-.. 18

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ~..000022200..2--- 21

Sheppard v. Ohio, 352 U.S. 910, 911 (1956) eae 18

Simmons v. Union News Co., 382 U.S. 884 (1965) 0.0.2... 2

United States v. Carver, 260 U.S. 482 (1923) -222.-..-.-eeeeceeneennee 18

United States ex rel. Epton v. Nenna, 318 F.Supp. 899 (S.D.

N.Y. 1970), aff'd. 446 F.2d 363 (2d Cir. 1971), cert. den.

os EG gf een eee ee 2

United States ex rel. Pennington v. Pate, 409 F.2d 757 (7th Cir.

1969) 12, 13

_—

Page

"Womack v. Oregon, 373 U.S. 947 (1963) --v-v-netennrenceenene 16

Constitution and Statutes

sixth Amendment, Constitution of the United States ---------- 7

Fourteenth Amendment, Constitution of the United States ............ 7

WB US.C. § 2241 -n------eccneeecnnseeeecsennstecenteensscensennnstennaenmamnnans senses ess eset 7

IB U.S.C. § 2254 ---nnesecnneeccnseccnesseneesnnsesrnsesnnseccnntennmecennacnnnssnnsarenssessst4 6, 9

Other Authorities

Bator, Finality in Criminal Law and Federal Habeas Corpus for

State Prisoners, 76 Harv. L. Rev. 441 (19GB) -.-.n.-------000-r0-0--0 21

Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn.

L, Rev. 783 (1961) -.....---2:--:c-sseseeeceseneesssesentententenetecenseneenenaensennenss 16

Brennan, State Court decisions and the Supreme Court, 31 Penn.

Bar Ass’n. Q. 393 (1960) ....----------s-se-ceseeeeceesercessensensenenenes sonneeee 18

Burger, Report on the Federal Judicial Branch—1973, 59

A.B.A.J. 1125 (1973) ..-2-----csco-csevssscosescentecnnsessnsescesecensssemaascnnsssnce 4

Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments, 38 Univ. Chi. L. Rev. TAD CESTO) oie 21

Harlan, Manning the Dikes, 13 Record of N.Y.C.B.A. 541 (1958) 18

Oaks, Legal History in the High Court—Habeas Corpus, 64 Mich.

L. Rev. 451 (1966) .........--- geeveesvsseenennnsceueennesesnecsnssensasnnecsnseenasennscs 21

Report of the Study Group on the Caseload of the Supreme Court,

57 F.R.D. 573 ...-n-c--ccccecesececeeceseeseseseeceeeneseseseceeeenssssnecssneneseemeeenenaes 4,5

Stern v. Gressman, Supreme Court Practice, §§ 5.7, 11.2 (4th

Ed. 1969) ....necscesccecececececeessceceseeseseteceeessesececensnensesesensneesenes 15, 16, 18

Supreme Court Journal, October Term, 1962, Index, p. iv. ...... 16, 17

1A, West’s Federal Forms § 488 (Boskey Ed. 1969) ...........-.------- 16

In The

Supreme Court of the United States

October Term, 1973 |

No. 73-786

MAJOR FRED R. ROSS aAnpD

STATE OF NORTH CAROLINA,

Petitioners,

v.

CLAUDE FRANKLIN MOFFITT,

Respondent.

MAJOR FRED R. ROSS AnD

STATE OF NORTH CAROLINA,

. Petitioners,

V.

CLAUDE F. MOFFITT,

Respondent.

BRIEF OF THE COMMONWEALTH OF VIRGINIA AS

_ AMICUS CURIAE IN SUPPORT OF THE PETITION FOR

A WRIT OF CERTIORARI TO THE JUDGMENT OF THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

INTEREST OF AMICUS CURIAE

The Petition for a Writ of Certiorari in this case was

docketed in this Honorable Court on November 15, 1973,

and the opinion of the United States Courts of Appeals for

the Fourth Circuit may be found in Moffitt v. Ross, 483

2

F.2d 650 (4th Cir. 1973). The Petition for a Writ of

Certiorari was granted by order of this Court dated Jan-

uary 7, 1974.

The decision of the United States Court of Appeals for

the Fourth Circuit in Case No. 72-1720, which was the case

in the Court below dealing with the collateral attack by way

of a Petition for a Writ of Habeas Corpus on a conviction

in Guilford County, North Carolina, is of particular con-

cern to the Commonwealth of Virginia because the affirm.

ance of the holding of the Court of Appeals in that case

would require Virginia, through its Supreme Court, to

appoint counsel to assist a criminal defendant in petitioning

this Honorable Court for a Writ of Certiorari if a federal

question appropriate for review in this Court were raised.

The holding of the Court of Appeals in the other case, Case

No. 72-2480, is of only tangential interest to the Common-

wealth of Virginia because it requires North Carolina to

provide appellate counsel, not only for an appeal as of right

to the intermediate Court of Appeals, but also for a discre-

tionary appeal to the Supreme Court of North Carolina. As

the Court of Appeals points out, Virginia’s appellate process

consists of a single stage with discretionary acceptance of

review at that stage but Virginia provides counsel for that

appeal. Consequently, Virginia’s principal concern is with

the holding in Case No. 72-1720, but that concern is a very

real one as Virginia does not now provide counsel to assist

defendants in seeking review before this Honorable Court,

nor does Virginia have any existing statutory or adminis-

trative framework for so appointing and compensating

counsel.

Perhaps one barometer as to the possible impact of the

Fourth Circuit Court of Appeals’ ruling on Virginia, and

this Honorable Court, would be the impact that the prior

holding of the United States Court of Appeals for the

_

3

Fourth Circuit in Nelson v. Peyton, 415 F.2d 1154 (4th

Cir. 1969), had on the Commonwealth of Virginia. In that

case the Court of Appeals held that at the close of a crim-

inal trial there was an affirmative obligation on either the

trial court or counsel to sua sponte advise the defendant of

his right to appeal, a procedure that had not theretofore

been followed in Virginia. In the three years preceding the

decision in Nelson, a total of 1,092 writs of error were

either granted or refused in criminal cases by the Supreme

Court of Virginia—an average of 364 cases a year. In the

comparable three year span following the decision in Nel-

son, 1970-1972, a total of 1,906 writs of error were acted

upon by the Supreme. Court of Virginia—an average of

635 cases per year. This is a remarkable and striking in-

crease that cannot be totally attributed to the normal in-

crease in criminal prosecutions.

An additional concern on the part of the amicus curiae

is the probable impact of providing counsel for the seeking

of review in this Honorable Court and, in light of the

holding in Nelson, the probable obligation on appellate coun-

sel to advise his client of his further appellate rights after

review has been refused by the Supreme Court of Virginia,

and in a case where review has been granted and the ulti-

mate disposition has been unfavorable for the defendant, a

similar obligation of advice will fall on appellate counsel

in those cases. There will obviously be a material increase

in the number of Petitions for Writs of Certiorari filed in

this Court from around the country, and prosecutor’s staffs

or Attorneys General’s staffs will be responsible for pre-

paring, reproducing and filing Briefs in Opposition to the

Granting of a Writ of Certiorari or Motions to Dismiss or

Affirm in direct appeal cases filed in this Court. There will

thus be a substantial increase in the workload, for example,

of the Criminal Litigation Division of the Office of the At- -

4

4

torney General of Virginia, and this increase would come

at a time when the emphasis in that office has shifted

towards. providing greater technical support to local law

enforcement and prosecutorial officials so as to improve

the administration of the criminal justice system. |

In addition, there will be a corresponding increase in

post-conviction collateral proceedings where prisoners raise

allegations relating to the denial of appeal or ineffective-

ness of counsel for the alleged failure of their attorneys

to advise them of their appellate rights or to pursue those

rights. A significant number of these proceedings would

necessitate plenary hearings as the allegations relate to

matters that are outside the record and, significantly, unless

this Honorable Court were to provide some mechanism for

the late filing of Petitions for Writs of Certiorari in such

- cases that are decided in favor of the prisoner, the prisoner

may be entitled to his release or to a re-trial on a Writ of

Habeas Cofpus although the alleged appellate deficit ob-

viously had no direct impact on guilt or innocence or the

fairness of the initial trial, and despite the fact that the

court of last resort in the State had ruled that the prisoner

had a fair trial.

Lastly, but not least, the amicus curiae, like all those

properly concerned with the effective and efficient disposi-

tion of cases in this Honorable Court, is disturbed: by the

- probable impact of the Court of Appeals’ decision on the

caseload of this Honorable Court. As Chief Justice Burger

pointed out in his annual report on the state of the Federal

Judicial Branch to the American Bar Association, the num-

ber of docketed cases before this Court increased from

1,463 in 1953 to 4,640 in 1972 (Burger, Report on the Fed-

eral Judicial Branch—1973, 59 A.B.A.J. 1125, 1129

(1973)). The Report of the Study Group on the Caseload

of the Supreme Court, often referred to as the “Freund Re-

wn

ee

port,”. also points to this geometric increase in the caseload

of this Honorable Court and that report points to the fact

that from 1941 to 1971 the number of in forma pauperis

cases filed in this Court increased from 178 to 1,930 (57

FRD. 573, 579). From 1941 to 1971 the percentage of

in forma pauperis petitions granted dropped from 9 percent

to 3.3 percent, with the latter figure adjusted to exclude

the petitions granted in the death penalty cases (57 F.R.D.

at 580, 615). The Freund Study Group reached the follow-

ing conclusions based on these impressive statistics :

“The statistics of the Court’s current workload, both

in absolute terms and in the mounting trend, are im-

pressive evidence that the conditions essential for the

performance of the Court's mission do not exist. For

an ordinary appellate court the burgeoning volume of

cases would be a staggering burden; for the Supreme

Court the pressures of the docket are incompatible with

the appropriate fulfillment of its historic and essential

functions.

“Over the past thirty-five years, as has been seen,

the number of cases filed has grown about fourfold,

while the number of cases in which the Court has heard

oral argument before decision has remained substan-

tially constant. Two consequences can be inferred. Is-

sues that would have been decided on the merits a

generation ago are passed over by the Court today;

and: second, the consideration given to the cases ac-

tually decided on the merits is compromised by the

pressures of ‘processing’ the inflated docket of petitions

and appeals.

- * *.

“We are concerned that the Court is now at the

saturation point, if not actually overwhelmed. If trends

continue, as there is every reason to believe they will,

and if no relief is provided, the function of the Court

must necessarily change. In one way or another, plac-

6

ing ever more reliance on an augmented staff, the

Court could perhaps manage to administer its docket.

But it will be unable adequately to meet its essential

responsibilities.” (57 F.R.D. at 581, 584).

If the decision of the United States Court of Appeals for

the Fourth Circuit is allowed to stand in an unmodified

form, the figures mentioned above would be extremely

conservative and the inundation of this Court described by

the Freund Study Group would be complete.

Accordingly, the Commonwealth of Virginia, joined by

the State of California, with the sponsorship of their At-

torneys General, offer this brief. in support of the peti-

tioner’s argument that counsel should not be provided as a

constitutional right to assist state prisoners in seeking re-

view of state appellate court determinations in this Honor-

' able Court. This brief of amicus curiae will be limited to

the consideration of that issue—the provision of counsel for

the perfection of a Petition for a Writ of Certiorari after

final action in the State appellate courts—the issue in-

volved in Case No. 72-1720 in the United States Court of

Appeals for the Fourth Circuit.

QUESTIONS PRESENTED

I. Whether, as a constitutional right, a State must pro-

vide counsel at every stage in the appellate process froma

criminal conviction, including the seeking of review in the

Supreme Court of the United States?

II. Whether, if this Honorable Court feels that the first

question should be answered in the affirmative, some modi-

fication of the prior holdings of this court should be made

so as to require the seeking ‘of certiorari, as a necessary

element in the exhaustion of State remedies within the

meaning of 28 U.S.C. § 2254 or so as to provide that the

° ; . 7

denial of certiorari by this Honorable Court to a State

prisoner constitutes an adjudication by this Court that the

is not “in custody in violation of the Constitution

or laws or treaties of the United States” so as to preclude

Tederal habeas corpus under 28 U.S.C. § 2241?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Sixth Amendment to the Constitution of the United

States :

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the state and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

Fourteenth Amendment to the Constitution of the United

States :

Section 1.

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

28 United States Code § 2241:

(a) Writs of habeas corpus may be granted by the

\

8

Supreme Court, any justice-thereof, the district courts

and any circuit judge within their respective jurisdic

tions. The order of a circuit judge shall be entered in

the records of the district court of the district wherein

the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and

any circuit judge may decline to entertain an applica-

tion for a writ of habeas corpus and may transfer the

application for hearing and determination to the district

court having jurisdiction to entertain it.

(c) The writ of habeas corpus shall not extend to

a prisoner unless—

(1) He is in custody under or by color of the au-

thority of the United States or is committed for trial

before some court thereof ; or

(2) He is in custody for an act dome’ or omitted

in pursuance of an Act of Congress, or an order,

process, judgment or decree of a court or judge of

the United States ; or

(3) He is in custody in violation of the Constitu-

tion or laws or treaties of the United States; or

(4) He, being.a citizen of a foreign state and

domiciled therein, is in custody for an act done or

omitted under any alleged right, title, authority, priv-

ilege, protection, or exemption claimed under the

commission, order or sanction of any foreign state,

or under color thereof, the validity and effect of

which depend upon the law of nations; or

(5) It is necessary to bring him into court to

testify or for trial.

(d) Where an application for a writ of habeas

corpus is made by a person in custody under the judg-

ment and sentence of a State court of a State which

contains two Or more Federal judicial districts, the

application may be filed in the district court for the

district wherein such person is in custody or in the

-—

9

district wy for the district within which the State

court was held which convicted and sentenced him and

each of such district courts shall have concurrent juris-

diction to entertain the application. The district court

for the district wherein such an application is filed in

the exercise of its discretion and in furtherance of

justice may transfer the application to the other district

court for hearing and determination.

28 United States Code § 2254:

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court

only on the ground that he is in cuStody in violation of

the Constitution or laws or treaties of the United

States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears

that the applicant has exhausted the remedies available

in the courts of the State, or that there is either an

absence of available State corrective process or the

existence of circumstances rendering such process in-

effective to protect the rights of the prisoner. .

(c) An applicant shall not be deemed to have ex-

hausted the remedies available in the courts of the

State, within the meaning of this section, if he has the

right under the law of the State to raise, by any avail-

able procedure, the question presented.

(d) In any proceeding instituted in a Federal court

by an application for a writ of habeas corpus by a per-

son in custody pursuant to the judgment of a State

court, a determination after a hearing on the merits

of a factual issue, made by a State court of competent

jurisdiction in a proceeding to which the applicant for

the writ and the State or an officer or agent thereof

were parties, evidenced by a written finding, written

10

opinion, or other reliable and adequate written indicia,

shall be presumed to be correct, unless the applicant

shall establish or it shall otherwise appear, or the re-

spondent shall admit—

(1) that the merits of the factual dispute were

not resolved in the State court hearing ;

(2) that the factfinding procedure employed by

the State court was not adequate to afford a full and

fair hearing;

(3) that the material facts were not adequately

developed at the State court hearing ;

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant

in the State court proceeding ;

(5) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the State

court proceeding ;

(6) that the applicant did not receive a full, fair,

and adequate hearing in the State court proceeding;

or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding ;

(8) or unless that part of the record of the State

court proceeding in which the determination of such

factual issue was made, pertinent to a determination

of the sufficiency of the evidence to support such

factual determination, is produced as provided for

hereinafter, and the Federal court on a consideration

of such part of the record as a whole concludes that.

such factual determination is not fairly supported

by the record:

And in an evidentiary hearing in the proceeding in

the Federal court, when due proof of such factual de-

termination has been made, unless the existence of one

or more of the circumstances respectively set forth in -

_—

ll

paragraphs numbered (1) to (7), inclusive, is shown

by the applicant, otherwise appears, or is admitted

by the respondent, or unless the court concludes pur-

suant to the provisions of paragraph numbered (8)

that the record in the State court proceeding, con-

sidered as a whole, does not fairly support such factual

determination, the burden shall rest upon the applicant

to establish by convincing evidence that the factual

determination by the State court was erroneous.

(e) If the applicant challenges the sufficiency of

the evidence adduced in such State court proceeding to

support the State court’s determination of a factual

issue made therein, the applicant, if able, shall produce

that part of the record pertinent to a determination of

the sufficiency of the evidence to support such deter-

mination. If the applicant, because of indigency or

other reason is unable to produce such part of the

record, then the State shall produce such part of the

record and the Federal court shall direct the State to

do so by order directed to an appropriate State official.

If the State cannot provide such pertinent part of the

record, then the court shall determine under the exist-

ing facts and circumstances what weight shall be given

to the State court’s factual determination.

(f) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true

and correct copy of a finding, judicial opinion, or other

reliable written indicia showing such a factual determi-

nation by the State court shall be admissible in the

Federal court proceeding.

STATEMENT OF THE CASE >

The specific facts which gave rise to this action are

fully set out in the Brief for the Petitioner and the amicus

will accordingly not repeat those matters but will concen-

trate instead during the course of this brief on the broader

national impact of the Court’s decision in this case.

12

ARGUMENT

I.

The Uniited States Court Of Appeals For The Fourth Circuit Erred

In This Case In Ruling That A State Must, As A Constitutional

Right, Provide Counsel At Every Stage In The Appellate Process

From A Criminal Conviction, Including The Discretionary Por.

tiom Of A Two-Tier Appellate System And For The Seeking Of

Review In This Honorable Court.

The United States Court of Appeals for the Fourth

Circuit prefaced its decision in these cases by acknowledg-

ing that they were “met with the questions reserved by the

Court in Douglas v. Cakfornia, 372 U.S. 353” (483 F.2d

at 650). The Court below then proceeded to decide those

“questions reserved” in such a manner as to have a decided

impact on the administration of the appellate portion of the

criminal justice system. As previously pointed out, the

Commonwealth of Virginia has no specific concern with

the decision of the Court of Appeals in Case No. 72-2480

as Virginia has, at the present time, a single tier appellate

system and counsel are provided for indigent criminal de-

fendants at all stages in that process (483 F.2d at 653-654).

However, Virginia presently has no procedure for re-

quiring advice to unsuccessful criminal defendants in State

appeals that they have a right to seek further review in

this Honorable Court, nor does Virginia have any existing

process whereby counsel would be provided to assist indigent

defendants in seeking such review if the defendant wishes

to avail himself of this opportunity. Consequently, the deci-

sion of the Court of Appeals with regard to this latter

point is of great concern to the amicus curiae.

The Court below acknowledges that the Seventh and

Tenth Circuit Courts of Appeals, in United States ex rel

Pennington v. Pate, 409 F.2d 757 (7th Cir. 1969) and

Peters v. Cox, 341 F.2d 575 (10th Cir. 1965), had held to

13

the contrary but the Court below felt that these decisions

in 1969 and 1965, respectively, were essentially outdated

within the context of what was now “constitutionally requi-

site” (483 F.2d at 655). In Peters, the United States Court

of Appeals for the Tenth Circuit held as follows:

“The question presented in this habeas corpus appeal

is whether the Supreme Court of New Mexico denied

appellate’s constitutional rights by refusing and fail-

ing to appoint counsel to assist him in taking an appeal

in a criminal case from that court to the Supreme Court

of the United States. We hold that there has been no

denial of constitutional rights under the circumstances

of this case. .

“It is, of course, the law that the due process clause

of the Fourteenth Amendment to the Constitution re-

quires the appointment of counsel to represent an in-

digent defendant in a state criminal trial. Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d

799; Hickock v. Crouse, 10 Cir., 334 F.2d 95. It is also

the law that under the due process and equal protection

clauses of the Fourteenth Amendment, an indigent

defendant has a right to appointed counsel on the ap-

peal of a state criminal conviction. Douglas v. People

of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d

811. But, we have been cited to no authority requiring,

or even permitting, a state supreme court to appoint

counsel for an indigent defendant to represent him on

his appeal to the Supreme Court of the United States.

Our own research has revealed none. The judgment

below is therefore affirmed.” (341 F.2d at 575).

Similarly, although the United States Court of Appeals

for the Seventh Circuit was primarily concerned with the

question decided by the Court below in Case No. 72-2480,

the Court in Pennington partially based its determination

on the practices of this Honorable Court in Petitions for

Writs of Certiorari:

14

“We find support for our decision in the present

practices of the United States Supreme Court with

regard to petitions for writs of certiorari. The United

States Supreme Court’s disposition of a petition for a

writ of certiorari is as fully discretionary as the IIl-

inois Supreme Court’s decision to grant a Rule 315

appeal. Both determinations are made after one appeal

as of right has occurred. If we were to hold for the

petitioner here, we would be saying a fortiori that the

Supreme Court’s present practice of not granting coun-

sel for the purpose of preparing certiorari petitions is

“ contrary to equal protection under the Constitution.

This we are unwilling to do.” (409 F.2d at 760).

The dissenting justices in the case of Douglas v. California,

372 U.S. 353 (1963), similarly relied on the practices

of this Honorable Court. Mr. Justice Clark, in dissenting,

made the following statement :

“With this new fetish for indigency the Court piles

an intolerable burden on the state’s judicial machinery.

Indeed, if the Court is correct it may be that we should

first clean up our own house. We have afforded indigent

litigants much less protection than has California. Last

Term we received over 1,200 in forma pauperis ap-

plications in none of which had we appointed attorneys

or required a record. Some were appeals of right. Still

we denied the petitions or dismissed the appeals on the

moving papers alone. At the same time we had hun-

dreds of paid cases in which we permitted petitions or

appeals to be filed with not only records but briefs by

counsel, after which they were disposed of in due

course... .” (372 U.S. at 359).

The dissenting opinion of Mr. Justice Harlan, joined by

Mr. Justice Stewart, similarly alluded to the practices of

this Honorable Court :

“What the Court finds constitutionally offensive in

15

California’s procedure bears a striking resemblance to

the rules of this Court and many state courts of last

resort on petitions for certiorari or for leave to appeal

filed by indigent defendants pro se. Under the prac-

tice of this Court, only if it appears from the petition

for certiorari that a case merits review is leave to

proceed in forma pauperis granted, the case trans-

ferred to the Appellate Docket, and counsel appointed.

Since our review is generally discretionary, and since

we are often not even given the benefit of a record in

the proceedings below, the disadvantages to the indi-

gent petitioner might be regarded as more substantial

than in California. But as conscientiously committed

as this Court is to the great principle of ‘Equal Justice

Under Law,’ it has never deemed itself constitutionally

~ required to appoint counsel to assist in the preparation

of each of the more than 1,000 pro se petitions for.

certiorari currently being filed each Term. We should

know from our own experience that appellate courts

generally go out of their way to give fair consideration

oe who are unrepresented.” (372 U.S. at 365-

).

This Honorable Court’s practice has been described in

Stern & Gressman, Supreme Court Practice § 11.2 (4th Ed.

1969), as follows: -

“No appointment of counsel before grant of review.

The Court has steadfastly refused to appoint counsel

to assist an unrepresented indigent, prior to the grant

of review, in preparing a petition for certiorari or

jurisdictional statement or any other preliminary mo-

~ tion or document. Requests for counsel at such early

stages have uniformly been rejected through the Clerk,

acting on instructions from the Court. While the cor-

rectness and indeed the constitutionality of this refusal

to appoint counsel to prepare the documents at this

critical stage of Supreme Court litigation have been

questioned, at least with respect to the direct review of

criminal prosecutions, there is no indication as yet that

16

the Court will change its policy in this respect.” (Id

at 378; fn. omitted ; see also 1A West’s Federal Forms,

§ 488 (Boskey Ed. 1969); Boskey, The Right to

Counsel in Appellate Proceedings, 45 Minn. L. Rey.

783, 796-799 (1961).)

Stern and Gressman have pointed to the obvious practical

problems involved in appointing counsel to assist -in the

preparation of an in forma pauperis certiorari proceeding.

They point out :

“Many of the in forma pauperis cases are completely

without merit, but the Court would have no way of

determining at this point which ones are of sufficient

merit or difficulty to warrant the attention or assistance

of counsel. Many of the requests might come so near

the filing deadlines as to compel further delays in

processing the cases in order to give counsel more

time to study the case and prepare the necessary papers.

And the sheer number of likely requests for counsel

would soon create problems in selecting sufficient num-

bers of qualified counsel. Selection of counsel ,after a

case has been studied and review has been granted,

on the other hand, can be premised in part upon the

counsel’s expertise in the area of law involved.” (Stern

and Gressman at 378, fn. 15).

At the October Term, 1962, this Honorable Court dealt

with a group of seven motions for appointment of counsel

which directly presented this question to the court and yet

in all seven cases this Honorable Court merely denied the

motion (Drumm v. California, 373 U.S. 947 (1963);

Mooney v. New York, 373 U.S. 947 (1963); Womack v.

Oregon, 373 U.S. 947 (1963) ; In re Jacobs, 373 U.S. 947

(1963); In re Diaz, 373 U.S. 947 (1963); In re Turner,

373 U.S. 947 (1963) ; Oppenheimer v. California, 374 U.S.

819 (1963)). The index to the Supreme Court Journal

for that Term records the fact that “at this time Clerk was

-

17

directed to follow policy of advising litigants that the Court

would not appoint counsel to assist indigent litigants in pre-

paring petitions for certiorari.” (Supreme Court Journal,

October Term, 1962, Index, p. iv.).

It is respectfully submitted that this Honorable Court

should continue to adhere to its consistent practice and re-

fuse to extend the Sixth Amendment right to counsel to the

preparation of Petitions for Writs of Certiorari in this

Honorable Court.

Il.

If This Honorable Court Determines That The Sixth and Fourteenth

Amendments To The Constitution Of The United States Man-

date The Provision Of Counsel To Assist Indigent State Prisoners

In Perfecting Review Of Their Convictions By This Court, Your:

Honors Should Also Reconsider The Weight And Effect That

Such A Review Will Have On The Finality Of Criminal Pro-

ceedings By Holding That The Denial Of Certiorari Constitutes

A Determination That The Prisoner Is Not In Custody In Viola-

tion Of Federal Constitutional Law So As To Preclude Federal

| Habeas Corpus Relief Or, At The Very Least, Reconsider The

| Court’s Holding In Fay v. Noia, 372 US. 391, 435 (1963), That

| A State Prisoner Need Not Seek Certiorari In Order To Have

Fully Exhausted His Available State Court Remedies.

If this Honorable Court determines that application for

certiorari is such an indispensable and crucial stage of

the criminal proceedings that the Sixth and Fourteenth

Amendments to the Constitution of the United States man-

date the appointment of counsel to assist an indigent de-

fendant in perfecting a review by this Honorable Court,

then your Honors should reconsider the weight to be given

a denial of certiorari for the purpose of collateral, post-

conviction proceedings, especially in the Federal courts.

This Honorable Court has rather consistently stated that

the denial of certiorari is not to be construed as reflecting

BRS.

the Court’s views either as to the merits of the case or as

to the Court’s jurisdiction to hear the matter (Stern and

Gressman, supra, § 5.7). Your Honors have frequently re-

iterated that “the denial of a writ of certiorari imports no

expression of opinion upon the merits of the case, as the

Bar has been told many times.” (United States v. Carver,

260 U.S. 482, 490 (1923). See also Brown v. Allen, 344

U.S. 443, 451-452, 491-492 (1953) ; Ohio ex rel. Eaton vy.

Price, 360 U.S. 246, 247 (1959).) Mr. Justice Frank.

furter was particularly persistent in commenting that the

Court’s refusal to grant certiorari was of no significance

insofar as the issues before the Court were concerned (See

Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-

920 (1950); Agoston v. Pennsylvania, 340 U.S. 84

(1950) ; Rosenberg v. United States, 344 U.S. 889 (1952);

Sheppard v. Ohio, 352 U.S. 910, 911 (1956); See also

Harlan, Manning the Dikes, 13 Record of N.Y.C.B.A. 541,

547 (1958), Brennan, State Court Decisions and the Sw-

preme Court, 31 Penn. Bar Ass’n. Q. 393, 402-403 (1960)).

In Brown v. Allen, 344 U.S. 443 (1953), Mr. Justice

Jackson expressed some views that might make an affirm.

ance of the Court of Appeals’ decision in this case meaning-

ful if the Court decides to so venture. Mr. Justice Jackson

said:

'“My conclusion is that whether or not this Court

has denied certiorari from a State court’s judgment

in a habeas corpus proceeding, no lower Federal court

should entertain a petition except on the following

conditions : (1) That the petition raises a jurisdictional

question involving Federal law on which the State

law allowed no access to its courts, either by habeas

corpus or appeal from the conviction, and that he there-

fore has no state remedy; or (2) that the petition

shows that although the law allows a remedy, he was

actually and properly obstructed from making a record

18

19

upon which the question could be presented, so that

his remedy by way of ultimate application to this Court

for certiorari has been frustrated. There may be cir-

cumstances so extraordinary that I do not now think

of them which would justify a departure from this

rule, but the run-of-the-mill case certainly does not.”

(344 U.S. at 545).

Mr. Justice Jackson also stated :

“I agree that as stare decisis, denial of certiorari should

be given no significance whatever. It creates no prece-

dent and approves no statement of principle entitled

to weight in any other case. But, for the same case in

which certiorari is denied, its minimum meaning is that

this court allows the judgment below to stand with

whatever consequences it may have upon the litigants

involved under the doctrine of res judicata as applied

either by State or Federal courts. . . .” (344 US. at

543).

In the course of the same decision, Mr. Justice Reed speak-

ing for himself and Chief Justice Vinson and Justice

Minton, said :

“A. Effect of Denial of Certiorari.—In cases such

as these, a minority of this Court is of the opinion that

there is no reason why a district court should not give

consideration to the record of the prior certiorari in

this court and such weight to our denial as the Dis-

trict Court feels the record justifies. This is the view

of the Court of Appeals [Citations omitted.] This is,

we think, the teaching of Ex parte Hawk, 321 U.S.

114, 118, and White v. Ragen, 324 U.S. 764, 765. We

have frequently said that the denial of certiorari ‘im-

ports no expression of opinion upon the merits of a

case.” [Citations omitted.] When on review of pro-

ceedings no res judicata or precedential effect follows,

the result would be in accord with that expression, that

statement is satisfied. But denial of certiorari marks

20

final action on State criminal proceedings. In fields

other than habeas corpus with its unique opportunity

for repetitious litigation, as demonstrated in Dorsey v.

Gill, 80 App. D.C. 9, 148 F.2d 857, See F.R.D. 313,

the denial would make the issues res judicata. The

minority thinks that where a record distinctly present-

ing a substantial Federal constitutional question disen-

tangled from problems of procedure is brought here

by certiorari and denied, courts dealing with the peti-

tioner’s future applications for habeas corpus on the

same issues presented in earlier applications for writs

of certiorari to this Court, should have the power to

take the denial into consideration in determining their

' action. ...” (344 U.S. at 456).

Thus, if this Honorable Court is to accord greater signifi-

cance to certiorari by requiring the appointment of counsel

to assist an indigent defendant in preparing a Petition for

a Writ of Certiorari to this Court, then the denial of

certiorari should have the same effect as to that particular

case as would the dismissal of an appeal for want of a

“substantial Federal question.” (See Epton v. New York,

390 U.S. 29 (1968) ; United States ex rel. Epton v. Nenna,

318 F.Supp. 899, 906-909 (S.D.N.Y. 1970), aff'd 446 F.2d

363, 365, 366 (2nd Cir. 1971), cert. den. 404 U.S. 948

(1971)). Incidentally, it is interesting to note the extent

to which the denial of certiorari is alluded to in citations of

cases in both legal periodicals and in the opinions of this

and other courts. It is also interesting to note the increasing

tendency to write dissenting opinions, sometimes of con-

siderable length, from orders of this Court denying cer-

tiorari. If the denial of certiorari is of no significance, then

why should dissents be noted and why should that fact be

alluded to in a case citation? (See Simmons v. Union News

Co., 382 U.S. 884, 886 (1965).)

21

This approach would allow for the criminal defendant to

have a full and complete consideration of his case at all

levels while at the same time insuring a higher degree of

finality to criminal judgments (See Schneckloth v. Busta-

monte, 412 U.S. 218 (1973); Bator, Finakty in Criminal

Low and Federal Habeas Corpus for State Prisoners, 76

Harv. L. Rev. 441 (1963); Friendly, Js Innocence Irrele-

vant? Collateral Attack on Criminal Judgments, 38 Univ.

Chi. L. Rev. 142 (1970) ; Oaks, Legal History in the High

Court—Habeas Corpus, 64 Mich. L. Rev. 451 (1966) ).

CONCLUSION

For the foregoing reasons, the Commonwealth of Vir-

ginia, joined by the State of California, as amicus curiae

on behalf of the petitioner herein, respectfully requests this

Honorable Court to reverse the decision of the Court of

Appeals and remand the case to the United States Court

of Appeals for the Fourth Circuit with directions to vacate

its opinion and to remand the cases to the District Courts

with instruction to dismiss the petitions for writs of habeas

corpus.

Respectfully submitted,

ANDREW P. MILLER

Attorney General of Virginia

RosBert E. SHEPHERD, JR.

Assistant Attorney General

Supreme Court-State Library Building

Richmond, Virginia 23219

a

22

The Commonwealth of Virginia has been authorized by

the Honorable Evelle J. Younger, Attorney General of the

State of California, to list him as joining with us in our

Amicus Curiae brief.

CERTIFICATE OF SERVICE

I, Robert E. Shepherd, Jr., an Assistant Attorney Gen-

eral of Virginia, and a Member of the Bar of the Supreme

Court of the United States, do hereby certify that on the

21st day of February, 1974, I mailed copies of the fore-

going brief of Amicus Curiae in Support of Petition for

Writ of Certiorari to the United States Court of Ap

peals for the Fourth Circuit by first class mail to the

Honorable Robert Morgan, Attorney General of North

Carolina, P. O. Box 629, Raleigh, North Carolina, 27602,

Counsel for Petitioners, and to Thomas B. Anderson, Jr.,

Esquire, Loflin, Anderson, and Loflin, 119 Orange Street,

P. O. Box 1315, Durham, North Carolina 27702, of

counsel for respondent.

Rospert E. SHEPHERD, JR.

Assistant Attorney General of Virgima