Pennsylvania v. Finley

Syllabus

PENNSYLVANIA v. FINLEY

No. 85-2099. Argued March 2, 1987-Decided May 18, 1987

Respondent was convicted of second-degree murder and sentenced to life imprisonment in a Pennsylvania trial court, and the Pennsylvania Su- preme Court affirmed on direct appeal.

In respondent's subsequent postconviction proceedings, the trial court, as required by state law, appointed counsel to assist her. Counsel reviewed the trial record; consulted with respondent; concluded that there were no arguable bases for collateral review; advised the trial court in writing of his conclusion; and requested permission to withdraw. After reviewing the record, the court agreed that there were no arguably meritorious issues and dis- missed the proceedings. Respondent acquired new appointed counsel and appealed to the Pennsylvania Superior Court, which concluded that counsel's conduct in the trial court violated respondent's constitutional rights, and remanded the case for further proceedings. The Superior Court relied on Anders v. California, 386 U. S. 738, which held that

(1) when an attorney appointed to represent an indigent defendant on

direct appeal finds the case to be wholly frivolous he must request the court's permission to withdraw and submit a brief referring to anything in the record arguably supporting the appeal, (2) a copy of the brief must be furnished the indigent and time must be allowed for him to raise any points that he chooses, and (3) the court itself must then decide whether the case is wholly frivolous.

Held: The court below improperly relied on the Federal Constitution to extend the Anders procedures to these collateral postconviction proceed- ings. Denial of counsel to indigents on first appeal as of right amounts to discrimination against the poor in violation of the Fourteenth Amend- ment, and Anders established a prophylactic framework that is relevant when, and only when, a litigant has a previously established constitu- tional right to counsel. The right to appointed counsel extends to only the first appeal of right, and since a defendant has no federal constitu- tional right to counsel when pursuing a discretionary appeal on direct re- view of his conviction, Ross v. Moffitt, 417 U. S. 600, afortiori, he has no such right when attacking, in postconviction proceedings, a conviction that has become final upon exhaustion of the appellate process. The Anders procedures do not apply to a state-created right to counsel on postconviction review just because they are applied to the right to coun- sel on first appeal as of right. Respondent's access to a lawyer was the

Syllabus

result of the State's decision, not the command of the Federal Constitu- tion. The procedures followed by her trial counsel in the postconviction proceedings fully comported with the fundamental fairness mandated by the Due Process Clause. States have no obligation to provide postcon- viction relief, and when they do, the fundamental fairness mandated by the Due Process Clause does not require that the State supply a lawyer as well. Nor was the equal protection guarantee of meaningful access violated in this case. Moreover, there is no merit to respondent's contention that once the State has granted a prisoner access to counsel on postconviction review, the Due Process Clause of the Fourteenth Amendment requires that counsel's actions comport with the Anders procedures. Evitts v. Lucey, 469 U. S. 387, distinguished. Pennsylva- nia made a valid choice to give prisoners the assistance of counsel in post- conviction proceedings without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position-at trial and on first appeal as of right. Pp. 554-559.

330 Pa. Super. 313, 479 A. 2d 568, reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 559. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 559. STE- VENS, J., filed a dissenting opinion, post, p. 570.

Gaele McLaughlin Barthold argued the cause for peti- tioner. With her on the briefs were Ann C. Lebowitz, Ron- ald Eisenberg, and William G. Chadwick, Jr.

Catherine M. Harper, by appointment of the Court, 479

U. S. 928, argued the cause and filed a brief for respondent.*

*Linley E. Pearson, Attorney General of Indiana, and William E.

Daily and Lisa M. Paunicka, Deputy Attorneys General, filed a brief for the State of Indiana et al. as amici curiae urging reversal, joined by offi- cials for their respective States as follows: John Van de Kamp, Attorney General of California, John J. Kelly, Chief State's Attorney for Connecti- cut, Charles M. Oberly, Attorney General of Delaware, Jim Smith, Attor- ney General of Florida, Corinne K. A. Watanabe, Attorney General of Ha- waii, Jim Jones, Attorney General of Idaho, Robert T. Stephan, Attorney General of Kansas, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, William L. Webster, Attorney General of Missouri, Travis Medlock, Attorney General of South

PENNSYLVANIA v. FINLEY 551

Opinion of the Court CHIEF JUSTICE REHNQUIST delivered the opinion of the

Court.

In 1975 respondent was convicted of second-degree murder by the Court of Common Pleas of Philadelphia County. She was sentenced to life imprisonment. Her appointed trial attorney appealed the conviction to the Supreme Court of Pennsylvania. That court unanimously affirmed the convic- tion. 477 Pa. 211, 383 A. 2d 898 (1978). Having failed on direct appeal, respondent, proceeding pro se, sought relief from the trial court under the Pennsylvania Post Conviction Hearing Act. See 42 Pa. Cons. Stat. § 9541 et seq. (1982).

She raised the same issues that the Supreme Court of Penn- sylvania had rejected on the merits. The trial court denied relief, but the State Supreme Court reversed, holding that respondent was entitled, under state law, to appointed coun- sel in her postconviction proceedings. 497 Pa. 332, 440 A. 2d 1183 (1981). On remand, the trial court appointed counsel.

Counsel reviewed the trial record and consulted with re- spondent. He concluded that there were no arguable bases for collateral relief. Accordingly, he advised the trial court in writing of his conclusion and requested permission to with- draw. The trial court conducted an independent review of the record and agreed that there were no issues even argu- ably meritorious. The court thus dismissed the petition for postconviction relief.

Respondent acquired new appointed counsel and pursued an appeal to the Superior Court. Over a dissent, that court concluded that the conduct of the counsel in the trial court's postconviction proceedings violated respondent's constitu-

Carolina, Mary Sue Terry, Attorney General of Virginia, Bronson C. La- Follette, Attorney General of Wisconsin, and Archie G. McClintock, Attor- ney General of Wyoming.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Larry W. Yackle, Alvin J. Bronstein, Vivian 0. Berger, David Goldstein, and Stefan Presser; and for the Na- tional Legal Aid and Defender Association by David P. Bergschneider.

Opinion of the Court

tional rights. 330 Pa. Super. 313, 479 A. 2d 568 (1984). The court held that "Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of" Anders v. Cali- 330 Pa. Super., at 318, 479 A. fornia, 386 U. S. 738 (1967).

2d, at 570.

In Anders, this Court held that when an attor- ney appointed to represent an indigent defendant on direct

"[H]e should so advise the court and request permission to withdraw. That request must, however, be accompa- nied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous." 386 U. S., at 744.

The Superior Court held that respondent's postconviction counsel had failed to follow these procedures, and it therefore remanded the case to the Court of Common Pleas for further proceedings. We granted certiorari, 479 U. S. 812 (1986), and we now reverse.

We think that the court below improperly relied on the United States Constitution to extend the Anders procedures to postconviction proceedings. The holding in Anders was based on the underlying constitutional right to appointed counsel established in Douglas v. California, 372 U. S. 353 (1963). Relying on "that equality demanded by the Four- teenth Amendment," id., at 358, the Douglas Court held that denial of counsel to indigents on first appeal as of right amounted to unconstitutional discrimination against the poor.

In Anders, the Court held that in order to protect the "con- stitutional requirement of substantial equality and fair proc- ess" set out in Douglas, appointed appellate counsel must follow the procedures described above when a case appears 386 U. S., at 744. Of course, Anders did to be frivolous.

PENNSYLVANIA v. FINLEY 551

Opinion of the Court

not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular pro- cedures. Rather, Anders established a prophylactic frame- work that is relevant when, and only when, a litigant has a previously established constitutional right to counsel.

We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, see Johnson v. Avery, 393 U. S. 483, 488 (1969), and we decline to so hold today. Our cases establish that the right to appointed counsel extends to the first appeal of right, and no further. Thus, we have rejected suggestions that we establish a right to counsel on discretionary appeals.

Wainwright v. Torna, 455 U. S. 586 (1982); Ross v. Moffitt, 417 U. S. 600 (1974). We think that since a defendant has no federal constitutional right to counsel when pursuing a dis- cretionary appeal on direct review of his conviction, a forti- ori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process. See Boyd v. Dutton, 405 U. S. 1, 7, n. 2 (1972) (POWELL, J., dissenting).

In Ross v. Moffitt, supra, we analyzed the defendant's claim to appointed counsel on discretionary review under two theories. We concluded that the fundamental fairness ex- acted by the Due Process Clause did not require appointment

"[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being 'haled into court' by the State and stripped of his presumption of inno- cence, but rather as a sword to upset the prior deter- mination of guilt. This difference is significant for, while no one would agree that the State may simply dis- pense with the trial stage of proceedings without a crimi-

Opinion of the Court

nal defendant's consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153

U. S. 684 (1894). The fact that an appeal has been pro-

vided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent 417 U. S., at defendants at every stage of the way."

610-611.

We also concluded that the equal protection guarantee of the Fourteenth Amendment does not require the appointment of an attorney for an indigent appellant just because an affluent "The duty of the State under defendant may retain one. our cases is not to duplicate the legal arsenal that may be pri- vately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly Id., at 616. in the context of the State's appellate process."

These considerations apply with even more force to post- conviction review. First, we reject respondent's argument that the Anders procedures should be applied to a state- created right to counsel on postconviction review just be- cause they are applied to the right to counsel on first appeal that this Court established in Douglas. Respondent appar- ently believes that a "right to counsel" can have only one meaning, no matter what the source of that right. But the fact that the defendant has been afforded assistance of coun- sel in some form does not end the inquiry for federal constitu- tional purposes. Rather, it is the source of that right to a lawyer's assistance, combined with the nature of the proceed- ings, that controls the constitutional question.

In this case, respondent's access to a lawyer is the result of the State's decision, not the command of the United States Constitution.

We think that the analysis that we followed in Ross fore- closes respondent's constitutional claim. The procedures followed by respondent's habeas counsel fully comported with fundamental fairness. Postconviction relief is even further removed from the criminal trial than is discretionary direct

PENNSYLVANIA v. FINLEY 551

Opinion of the Court

It is not part of the criminal proceeding itself, and it review. is in fact considered to be civil in nature. See Fay v. Noia,

It is a collateral attack that normally occurs only after the defendant has failed to secure relief through direct review of his conviction. States have no obligation to provide this avenue of relief, cf. United States v. MacCollom, 426 U. S. 317, 323 (1976) (plurality opinion), and when they do, the fundamental fairness man- dated by the Due Process Clause does not require that the State supply a lawyer as well.

Nor was the equal protection guarantee of "meaningful ac- cess" violated in this case. By the time respondent pre- sented her application for postconviction relief, she had been represented at trial and in the Supreme Court of Pennsylva- nia.

In Ross, we concluded that the defendant's access to the trial record and the appellate briefs and opinions pro- vided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review.

417 U. S., at 614-615. We think that the same conclusion necessarily obtains with respect to postconviction review.

Since respondent has no underlying constitutional right to appointed counsel in state postconviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying con- stitutional right.

Respondent relies on Evitts v. Lucey, 469 U. S. 387, 401 (1985), for the proposition that even though the State need not grant a prisoner access to counsel on postconviction re- view, once it has done so, the Due Process Clause of the Fourteenth Amendment requires that counsel's actions com- port with the procedures enumerated in Anders.

In Evitts, the Court held that a State cannot penalize a criminal de- fendant by dismissing his first appeal as of right when his appointed counsel has failed to follow mandatory appellate In so ruling, the Court rejected the State's argument rules. that since it need not provide an appeal in the first place, see

Opinion of the Court

McKane v. Durston, 153 U. S. 684 (1894), it could cut off a defendant's appeal without running afoul of the Due Process Clause. Noting that "[t]he right to appeal would be unique among state actions if it could be withdrawn without con- sideration of applicable due process norms," 469 U. S., at 400-401, the Court reasoned that "when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Con- stitution-and, in particular, in accord with the Due Process Clause," id., at 401. Respondent argues that by allowing counsel to represent her without complying with Anders, the Court of Common Pleas improperly deprived her of her state- law right to "effective" assistance.

We think that Evitts provides respondent no comfort.

Ini- tially, the substantive holding of Evitts-that the State may not cut off a right to appeal because of a lawyer's ineffective- ness -depends on a constitutional right to appointed counsel that does not exist in state habeas proceedings. More im- portant, however, is the fact that unlike the prisoner in Evitts, who was actually deprived of a state-created right to appeal, respondent here has suffered no deprivation, assum- ing for the moment that the Due Process Clause is relevant.

Cf. Wainright v. Torna, 455 U. S., at 588, n. 4 (per curiam); Polk County v. Dodson, 454 U. S. 312 (1981). The Court of Common Pleas found that respondent's right to counsel under Pennsylvania law was satisfied by the conduct of her ap- pointed counsel, combined with the court's independent re- view of the record. The Superior Court did not disagree with this state-law holding. Rather, it ruled that Anders re- quired even more assistance, as a matter of federal constitu- tional law. We have rejected that conclusion, and therefore the State's obligations, as a matter of both federal and state law, have been fulfilled. Since respondent has received ex- actly that which she is entitled to receive under state law-an independent review of the record by competent counsel-she cannot claim any deprivation without due process.

PENNSYLVANIA v. FINLEY 551

BRENNAN, J., dissenting

At bottom, the decision below rests on a premise that we are unwilling to accept-that when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must as- sume. On the contrary, in this area States have substantial discretion to develop and implement programs to aid prison- ers seeking to secure postconviction review.

In Pennsyl- vania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different po- sition- at trial and on first appeal as of right.

In this con- text, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders. The judgment of the Superior Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE BLACKMUN, concurring in the judgment. I agree with the Court's conclusion that the Superior Court erred in its belief that the United States Constitution re- quired the application of the procedures mandated by Anders

v. California, 386 U. S. 738 (1967), to this case.

In my view, however, on remand the Superior Court should be able to consider whether appointed counsel's review of respond- ent's case was adequate under Pennsylvania law or the Penn- sylvania Supreme Court's remand order.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.

On respondent's appeal from denial of state collateral re- lief, the Pennsylvania Supreme Court held that state law re- quired Dorothy Finley's counsel to review the record care- fully, to amend her petition for relief, and to file a brief on her behalf. On remand, however, her counsel advised the

BRENNAN, J., dissenting

trial court (Court of Common Pleas) summarily to dismiss her petition. Today the Court reverses the subsequent deter- mination of the appellate court (Superior Court) that the per- formance of Dorothy Finley's trial counsel was deficient for

those established by Anders v. California, 386 U. S. 738 (1967), by Commonwealth v. McClendon, 495 Pa. 467, 434 A.

2d 1185 (1981), and by the remand order issued originally by the Pennsylvania Supreme Court.

In Pennsylvania, courts may comply with either the An- ders or the McClendon procedures when appointed counsel wishes to withdraw from representation of a petitioner's 330 Pa. Super. 313, collateral attack upon a judgment.

320-321, 479 A. 2d 568, 571 (1984). The Anders procedures require counsel to perform a conscientious evaluation of the record, to write a brief referring to "arguable" support in the record, and to give notice to the client. The trial court may grant counsel's request to withdraw after a full examina- tion of the record. Anders v. California, supra, at 744.

The McClendon procedures require "an exhaustive examina- tion of the record" by counsel and an "independent deter- mination" by the court that the petition is wholly frivolous.

330 Pa.

No Anders brief or notice to client is required.

Super., at 320-321, 479 A. 2d, at 571.

In addition to finding that trial counsel complied with nei- ther of these two sets of requirements, the state appellate court found that the lower court failed to comply with the specific requirements of the remand order of the State In that circumstance, the appellate court Supreme Court. decision rested on this independent state ground, and the petition for certiorari should be dismissed as improvidently granted. Moreover, the controversy involving the applica- tion of the Anders procedures is not ripe for review. Fi- nally, I believe that counsel's deficient performance violated Finley's federal rights to due process and equal protection. I therefore dissent.

PENNSYLVANIA v. FINLEY 551

BRENNAN, J., dissenting

The failure of the trial court to ensure compliance with the State Supreme Court's instructions on remand is an inde- pendent state ground for the appellate court's decision.

After exhausting direct appeals of her criminal convictions, Finley filed a pro se application for collateral relief pursuant to the Pennsylvania Post Conviction Hearing Act, 42 Pa.

Cons. Stat. § 9541 et seq. (1982) (PCHA). The trial court summarily denied the petition. The Pennsylvania Supreme Court reversed and held that Finley was entitled to ap- pointed counsel if indigent, since the PCHA required the appointment of counsel to assist her in a meaningful manner.

497 Pa. 332, 334, 440 A. 2d 1183, 1184 (1981). The State Supreme Court did not rely on or refer to federal statutory or constitutional law.

It stated that the right to counsel guaranteed by the PCHA could be denied "only where a pre- vious PCHA petition involving the same issues has been de- termined adversely to the petitioner in a proceeding on the PCHA petition... ."

Ibid. (emphasis added). Finley had not previously filed a PCHA petition and therefore had a right to counsel. The State Supreme Court instructed that appointed counsel was not to limit his or her efforts to the claims raised by Finley, but should "explore legal grounds for complaint, investigate underlying facts" and "articulate claims for relief." The trial court was further instructed to allow counsel to amend the petition. 497 Pa., at 334-335, 440 A. 2d, at 1184-1185.

On remand, Finley's counsel failed to meet these require- ments. Appointed counsel read only the "Notes of Testi- mony" of the original trial and failed to indicate to the trial court how he had conducted an exhaustive research of the record.

330 Pa. Super., at 322-323, 479 A. 2d, at 572-573.

Instead of filing a brief and amending the complaint, as the remand order required, he simply submitted a "no-merit" let-

BRENNAN, J., dissenting

ter describing his limited review, listing the identical issues that were previously presented to the Pennsylvania Supreme Court on both direct appeal and on collateral attack, and stating why he regarded those claims as meritless. 1 Finley did not receive advance notice from either the court or her counsel that the latter was filing a letter maintaining that all her claims were without merit. Tr. of Oral Arg. 17.

In- deed, there is no evidence that Finley ever received a copy of the letter. The attorney also failed to inform Finley of her right to seek new counsel or to proceed pro se before the 330 Pa. Super., at 320-321, 323, 479 A. 2d, trial court. at 571, 573. After receiving the no-merit letter, the trial court dismissed Finley's petition without a hearing. New counsel was appointed to represent Finley in the appeal of the dismissal.

The Superior Court reversed, noting that the trial court had failed to follow the required instructions of the State Supreme Court's remand, which were based on its interpre- "The [Pennsylvania] Supreme Court tation of the PCHA. remanded, not because it saw any particular merit to the [contentions raised at that time], which were identical to those disposed of earlier in appellant's direct appeal. ...

The Supreme Court wished to afford appellant the opportu- nity to amass other issues with arguable merit. .. ." 330 Pa.

Super., at 321, 479 A. 2d, at 571-572.

The Superior Court cited to Rule 1504 of the Pennsylvania Rules of Criminal Procedure as a basis for the earlier remand order. That Rule requires counsel to "act as an advocate in fulfilling his role." 330 Pa. Super., at 321, 479 A. 2d, at 572.

The Superior Court stated that Finley's appellant counsel was able to list several issues "which may have arguable merit" simply by reviewing the "'bare record available in the

1 The Superior Court noted that counsel gave an incorrect explanation of one of these two issues in his evaluation of why these issues were meritless. 330 Pa. Super., at 323, n. 4, 479 A. 2d, at 573, n. 4.

PENNSYLVANIA v. FINLEY 551

BRENNAN, J., dissenting

Id., at 323, 479 A. 2d, at 572-573 (citing Superior Court."' Brief for Appellant).' Thus, the trial court's failure to re- quire a submitted brief and an amended complaint did not satisfy the mandate of the State Supreme Court that effec- tive counsel be provided for Finley's first PCHA petition.

Since trial counsel had failed to amend the petition or submit a brief, "the proceeding was in fact uncounselled" under Id., at 321, 479 A. 2d, at 572 (citation Pennsylvania law. omitted).

This reliance on state grounds independently and ade- quately justified the Superior Court's remand. There is no need for a plain statement indicating the independence of the state grounds since there was no federal law interwoven with this determination. See Michigan v. Long, 463 U. S.

Indeed, the Superior Court referred to 1032, 1041 (1983). state law with the very purpose of basing the reversal of the trial court's decision on grounds independent of both Anders and McClendon. 330 Pa. Super., at 321-322, 479 A. 2d, at 571-572. As a result, the Court has no need to address the issue of what general requirements govern representation in collateral proceedings in Pennsylvania, much less whether Anders is applicable.

The Anders issue is not ripe for review for yet another reason. The Superior Court's decision leaves the trial court discretion on remand to impose the requirements of either Anders or McClendon, so long as it also complies with the requirements imposed by the original remand order by the Pennsylvania Supreme Court. See 330 Pa. Super., at 322,

2Finley's appellate counsel raised a number of issues of arguable merit that establish Sixth Amendment violations of ineffective assistance of coun- sel. See Brief for Respondent 15, n. 7.

BRENNAN, J., dissenting

479 A. 2d, at 571.' Because the trial court had satisfied nei- ther the requirements of Anders nor McClendon,4 the Supe- rior Court remanded the case and did not specify which set of procedures the trial court was to follow. 5

It is more than conjecture that the Anders requirements may never be imposed in this case, given the alternative availability of McClendon as a source of duties in Pennsylva- nia. After the present case was decided, the Superior Court held that the McClendon procedures-not the Anders re- quirements-are required on collateral review. Common- wealth v. McGeth, 347 Pa. Super. 333, 344-345, 500 A. 2d 860, 866 (1985). The Pennsylvania Supreme Court has never held that Anders procedures are required on collateral re- view.

In Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A. 2d 1100, 1101-1102 (1981), the State Supreme Court was equally divided on this issue and therefore affirmed the lower court ruling that the Anders procedures are required

'The Superior Court acknowledged that Pennsylvania appellate courts do not always require that trial courts follow the Anders procedure, but may allow the appointed counsel to withdraw if the lower court complies with the alternative requirements enunciated by the Pennsylvania Su- preme Court in Commonwealth v. McClendon, 495 Pa. 467, 434 A. 2d 1185 (1981).

330 Pa. Super., at 320, 479 A. 2d, at 571 ("[C]ompliance was un- necessary" if counsel conducted an exhaustive examination of the record and the lower court concludes that the petitioner's claims are completely frivolous).

IThe Superior Court found that the McClendon requirements were not satisfied.

"Here, there is no mention of an exhaustive search nor the re- quired finding that the case is wholly frivolous. Counsel must certify to an exhaustive reading and endeavor to uncover all possible issues for review so that the frivolity of the appeal may be determined by the lower court, or ...

330 Pa. Super., at 322, 479 A. 2d, at 572 (footnotes omitted).

at the appellate level."

IThe Superior Court's instructions to the trial court were as follows: "Since the procedures utilized herein were defective, they acted to de- prive appellant of her right to adequate representation. We remand for an evidentiary hearing on the claims raised in appellant's brief and any other issues discerned by counsel after an exhaustive search of the record in accordance with this opinion."

Id., at 323-324, 479 A. 2d, at 573.

PENNSYLVANIA v. FINLEY 551

BRENNAN, J., dissenting

only on direct appeal from a criminal conviction, and not on collateral review. Because Pennsylvania does not require that Anders be followed on collateral review, there is no occa- sion for today's decision.

It is also unnecessary to decide in this case the adequacy of the McClendon procedures. The Commonwealth does not oppose the imposition of the McClendon requirements.

In- deed, the Commonwealth approves of the McClendon re- quirements as a "flexible and enlightened approach." Brief for Petitioner 18, n. 11. Since it is not clear that the parties in this case have adversarial legal interests, there is no case or controversy regarding the adequacy of McClendon. See Steffel v. Thompson, 415 U. S. 452, 460 (1974).6

In order to avoid issuing an advisory opinion, we should await a final judgment by a Pennsylvania court that requires Since review the imposition of the Anders procedures. of the trial court's eventual decision may be sought later in both the state appellate courts and this Court, we should

6 There are several additional reasons why the Court should not decide the validity of the McClendon requirements. First, any holding that de- termines the applicability of the McClendon requirements to collateral re- view proceedings is inappropriate because of the lack of a final judgment.

Since the trial court has not yet chosen which procedure to follow, there is no final judgment or decree that we can review. Cf. Republic Gas Co.

Second, the validity of the

v. Oklahoma, 334 U. S. 62, 69-71 (1948).

McClendon requirements is not at issue in this case, and is not briefed by the litigants. Third, the McClendon issue is not ripe for review. The trial court may decide not to impose the McClendon requirements, and thus any opinion on this issue is an impermissible advisory opinion.

I Such an approach is consistent with the past practices of the Court: "It has long been this Court's 'considered practice not to decide abstract, . . or to decide any constitutional hypothetical or contingent questions, . . . or to formulate question in advance of the necessity for its decision, . a rule of constitutional law broader than is required by the precise facts to which it is to be applied, . . . or to decide any constitutional ques- tion except with reference to the particular facts to which it is to be ap- .'" Public Workers v. Mitchell, 330 U. S. 75, 90, n. 22 (1947); plied . . see also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 510 (1975) (REHN- QUIST, J., dissenting).

.

BRENNAN, J., dissenting

avoid prematurely reversing the decision of an inferior state court.' Thus, I would dismiss the petition as improvidently granted.

I also disagree with the Court's holding that trial counsel's abandonment of his client without notice and his advocacy against Finley's petition did not violate her federal rights to due process and equal protection. The Court denigrates Finley's right to effective assistance of counsel by noting that this case involves only postconviction review by a trial court.

It argues that such review is similar to discretionary appel- late review, for which appointment of counsel is not required by the Federal Constitution under Ross v. Moffitt, 417 U. S.

600, 621 (1974). See ante, at 555. This case, however, is readily distinguished from Ross. Under state law, Finley has a mandatory right to effective assistance of counsel, and the trial court is required to review the issues of arguable merit.

In construing the PCHA legislation, the Pennsylvania

"We pause to note that the mandatory appointment re- quirement is a salutary one and best comports with effi- cient judicial administration and serious consideration of a prisoner's claims. Counsel's ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its . ." Commonwealth v. Mitchell, 427 Pa. attention. .

395, 397, 235 A. 2d 148, 149 (1967).

In the instant case, the Commonwealth sought discretionary review of the Superior Court's decision in the Pennsylvania Supreme Court. Re- view was granted, and the matter was briefed and argued. The court, however, ordered that the appeal be dismissed "as having been improvi- dently granted." 510 Pa. 304, 507 A. 2d 822 (1986). Under Pennsylvania law, the State Supreme Court's refusal to review is not a decision on the merits. See Commonwealth v. Britton, 509 Pa. 620, 506 A. 2d 895 (1986); Dayton v. Dayton, 509 Pa. 632, 506 A. 2d 901 (1986).

PENNSYLVANIA v. FINLEY 551

BRENNAN, J., dissenting

The Pennsylvania Legislature recognized the importance of collateral review by adopting the PCHA, which requires ef- fective assistance of counsel.

330 Pa. Super., at 321, 479

A. 2d, at 572. An appointed counsel's determination that a

petitioner's claims have no merit may completely preclude consideration of meritorious claims. Pennsylvania law al- lows summary dismissal, without appointment of counsel, of petitions which raise claims that were the subject of previous PCHA petitions. Pa. Rule Crim. Proc. 1504.1

The Court justifies its holding on the ground that a State may refuse indigent prisoners any assistance of counsel and therefore has the lesser power to deliver inadequate legal services. But it has long been settled that even if a right to counsel is not required by the Federal Constitution, when a State affords this right it must ensure that it is not with- drawn in a manner inconsistent with equal protection and due process. See Evitts v. Lucey, 469 U. S. 387, 400 (1985); Ross v. Moffitt, supra; Johnson v. Avery, 393 U. S. 483, 488 (1969); Smith v. Bennett, 365 U. S. 708, 713 (1961).

"'Due process' emphasizes fairness between the State and the individual dealing with the State." Ross v. Moffitt, supra, at 609. "[F]undamental fairness entitles indigent de- fendants to 'an adequate opportunity to present their claims fairly within the adversary system."' Ake v. Oklahoma, 470

U. S. 68, 77 (1985) (citation omitted).

In my view, the Fed- eral Constitution requires that the Anders procedures must be followed when a State provides assistance of counsel in

"This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant

9This right to counsel on collateral review is of special significance to Finley because the Superior Court found several arguably meritorious is- sues which indicate that effective assistance of counsel was not rendered both in the trial that resulted in her conviction and in the handling of the postconviction petition. 330 Pa. Super., at 322-323, 479 A. 2d, at 572-573.

BRENNAN, J., dissenting

It would also induce the court to pur- is able to obtain. sue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by counsel. The no- merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. More- over, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled." Anders v. Califor- nia, 386 U. S., at 745.

Even if the Anders requirements were not mandated by due process, the performance of Finley's counsel clearly vio- lated minimal standards of fundamental fairness. At a mini- mum, due process requires that counsel perform as an advo- cate. The "very premise of our adversarial system ... is that partisan advocacy on both sides of a case will best pro- mote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U. S. 853, It is fundamentally unfair for appointed counsel 862 (1975). to argue against his or her client's claims without providing notice or an opportunity for that client either to proceed pro se or to seek the advice of another attorney. "It is one thing for a prisoner to be told that appointed counsel sees no way to help him, and quite another for him to feel sandbagged when counsel appointed by one arm of the government seems to be helping another to seal his doom." Suggs v. United States,

129 U. S. App. D. C. 133, 136, 391 F. 2d 971, 974 (1968).

In- deed, even the Commonwealth concedes that "due process requires that the attorney conduct a conscientious and mean- ingful review of the case and the record." Tr. of Oral Arg.

14. The Superior Court's criticism of the trial counsel's re-

view of the record as insufficient was in those terms, since Finley's appellate counsel was able to list several issues of

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BRENNAN, J., dissenting

arguable merit based on the "bare record available in the Superior Court." 330 Pa. Super., at 323, 479 A. 2d, at 572.

The performance of Finley's counsel also violated the Equal Protection Clause. Equal protection demands that States eliminate unfair disparities between classes of indi- viduals. There is no rational basis for assuming that peti- tions submitted by indigents for collateral review will be less It is hard to be- meritorious than those of other defendants. lieve that retained counsel would file a letter that advocates dismissal of a client's case without notice to the client and without conducting a conscientious assessment of the record.

Since an impoverished prisoner must take whatever a State affords, it is imperative that the efforts of court-appointed counsel be scrutinized so that the indigent receives adequate representation. Equal protection therefore requires the im- position of the Anders requirements. Otherwise, "[t]he indi- gent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual," while a person who can afford it obtains meaningful review. Douglas v.

California, 372 U. S. 353, 358 (1963).

The Court transforms Finley's right to effective counsel into a right to a meaningless ritual."0 In the face of the identification by the Superior Court of three possible means of ensuring adequate representation, the Court was without "Respect for the inde- jurisdiction to render its decision. pendence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and inde- pendent state ground." Michigan v. Long, 463 U. S., at "I disagree with the Court's interpretation that the Commonwealth's obligations, as a matter of state law, were conclusively determined by the In my view, therefore, today's holding does not preclude a trial court. determination of this case under the Commonwealth's own laws and Con- stitution. See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (MARSHALL, J., dissenting).

STEVENS, J., dissenting

I would therefore dismiss the petition as improvi- 1040. dently granted.

I respectfully dissent.

JUSTICE STEVENS, dissenting.

Without bothering to identify the basis for federal juris- diction in this case, the Court blithely assumes that the deci- sion below does not rest on an independent and adequate I cannot agree. State procedural rules are state ground. often patterned after federal precedents, but they are, none- In this case, the Pennsylvania theless, rules of state law.

Superior Court explicitly stated that it was applying "Penn- sylvania law concerning procedures to be followed when a

330

court-appointed attorney sees no basis for an appeal."

Pa. Super. 313, 318, 479 A. 2d 568, 570 (1984) (emphasis added). As for federal precedents, the court simply noted that state law in the area was "derived from" this Court's 1967 decision in Anders v. California, 386 U. S. 738. Thus, I believe that the "plain statement" test of Michigan v. Long, 463 U. S. 1032, 1037-1044 (1983), is satisfied, and that the de- cision on review rested on independent and adequate state grounds. Moreover, it seems rather clear to me, for the rea- sons stated in Part I of JUSTICE BRENNAN'S dissent, that the decision below did not rest alone on that portion of the discus- sion which could conceivably be considered to be based on In either event, there is no Anders. See ante, at 561-563. basis for concluding that the Pennsylvania Superior Court's decision to remand this case stemmed from its belief that the Federal Constitution required it to do so.

But even if I believed that the court relied on some federal precedents, and that the sacrosanct "plain statement" were missing, I would still conclude that this Court lacks jurisdic- It is unrealistic-and quite unfair-to tion over the case. expect the judges in the Philadelphia office of the Superior Court of Pennsylvania to acquire and retain familiarity with this Court's jurisprudence concerning the intricacies of our own jurisdiction. The occasions on which the decisions of

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STEVENS, J., dissenting

the judges in that office will be subject to direct review by the Supreme Court of the United States are far too rare to make it appropriate for them to become familiar with the It is denigrating enough to Michigan v. Long presumption. require the justices of the 50 State Supreme Courts to in- clude such a statement in their decisions, without demanding the same of the 716 state appellate judges or all 20,000 state- court judges who decide cases that could conceivably be re- viewed by this Court.*

Before the Commonwealth of Pennsylvania petitioned this Court for a writ of certiorari, it sought review of the Superior Court's judgment in the Supreme Court of Pennsylvania.

Had it not done so, this Court could not have accepted juris- diction of the petition because cases originating in a state court may not be reviewed here unless the judgment was "rendered by the highest court of a State in which a decision

28 U. S. C. § 1257. When the Pennsylvania

could be had."

Supreme Court dismissed the Commonwealth's appeal as im- providently granted, it did not accompany its order with any statement of reasons. We thus have no way of knowing whether its action was based on a correct interpretation of Pennsylvania law or an incorrect interpretation of federal law.

In my opinion, due respect for the courts of the States, as well as our separate interest in the "avoidance of ren- dering advisory opinions," Michigan v. Long, supra, at I would not 1040, strongly favors the former presumption. take yet another step down the jurisdiction-expanding path marked by Michigan v. Long, see Delaware v. Van Arsdall,

*These figures are based on 1984 statistics as reported in two recent See Conference of State Court Administrators and the publications.

Court Statistics and Information Project of the National Center for State Courts, R. Roper, M. Elsner, & V. Flango, 1984 State Appellate Court Jurisdiction Guide for Statistical Reporting 5-9 (1985) (figure for appellate

Annual Report 1984, pp. 195-248 (June 1986) (figure for all judges).

572

STEVENS, J., dissenting

475 U. S. 673, 689 (1986) (STEVENS, J., dissenting). stead, I would dismiss the writ for want of jurisdiction.

In- I respectfully dissent.