Pennsylvania v. Finley

Justice Brennan,

with whom Justice Marshall joins, dissenting.

On respondent’s appeal from denial of state collateral relief, the Pennsylvania Supreme Court held that state law required Dorothy Finley’s counsel to review the record carefully, to amend her petition for relief, and to file a brief on her behalf. On remand, however, her counsel advised the *560trial court (Court of Common Pleas) summarily to dismiss her petition. Today the Court reverses the subsequent determination of the appellate court (Superior Court) that the performance of Dorothy Finley’s trial counsel was deficient for failure to comply with three different sets of requirements: 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 collateral attack upon a judgment. 330 Pa. Super. 313, 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 examination of the record. Anders v. California, supra, at 744. The McClendon procedures require “an exhaustive examination of the record” by counsel and an “independent determination” by the court that the petition is wholly frivolous. No Anders brief or notice to client is required. 330 Pa. Super., at 320-321, 479 A. 2d, at 571.

In addition to finding that trial counsel complied with neither 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 Supreme Court. In that circumstance, the appellate court decision rested on this independent state ground, and the petition for certiorari should be dismissed as improvidently granted. Moreover, the controversy involving the application of the Anders procedures is not ripe for review. Finally, I believe that counsel’s deficient performance violated Finley’s federal rights to due process and equal protection. I therefore dissent.

*561The failure of the trial court to ensure compliance with the State Supreme Court’s instructions on remand is an independent 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 appointed 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 previous PCHA petition involving the same issues has been determined 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 requirements. Appointed counsel read only the “Notes of Testimony” 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*562ter 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. Indeed, 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 trial court. 330 Pa. Super., at 320-321, 323, 479 A. 2d, 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 interpretation of the PCHA. “The [Pennsylvania] Supreme Court 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 opportunity 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 *563Superior Court.’” Id., at 323, 479 A. 2d, at 572-573 (citing Brief for Appellant).2 Thus, the trial court’s failure to require a submitted brief and an amended complaint did not satisfy the mandate of the State Supreme Court that effective 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 Pennsylvania law. Id., at 321, 479 A. 2d, at 572 (citátion omitted).

This reliance on state grounds independently and adequately 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. 1032, 1041 (1983). Indeed, the Superior Court referred to 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.

II

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, *564479 A. 2d, at 571.3 Because the trial court had satisfied neither the requirements of Anders nor McClendon,4 the Superior 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 Pennsylvania. After the present case was decided, the Superior Court held that the McClendon procedures —not the Anders requirements — are required on collateral review. Commonwealth 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 review. 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 *565only 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 occasion 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. Indeed, the Commonwealth approves of the McClendon requirements 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 the imposition of the Anders procedures.7 Since review of the trial court’s eventual decision may be sought later in both the state appellate courts and this Court, we should *566avoid prematurely reversing the decision of an inferior state court.8 Thus, I would dismiss the petition as improvidently granted.

Ill

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 appellate 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 Supreme Court concluded:

“We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient 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 attention. ...” Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A. 2d 148, 149 (1967).

*567The Pennsylvania Legislature recognized the importance of collateral review by adopting the PCHA, which requires effective 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 allows summary dismissal, without appointment of counsel, of petitions which raise claims that were the subject of previous PCHA petitions. Pa. Rule Crim. Proc. 1504.9

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 withdrawn 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. “[Fundamental fairness entitles indigent defendants 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 Federal Constitution requires that the Anders procedures must be followed when a State provides assistance of counsel in collateral proceedings. As the Court previously explained:

“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 *568is able to obtain. It would also induce the court to pursue 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. Moreover, 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. California, 386 U. S., at 745.

Even if the Anders requirements were not mandated by due process, the performance of Finley’s counsel clearly violated minimal standards of fundamental fairness. At a minimum, due process requires that counsel perform as an advocate. The “very premise of our adversarial system ... is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.” Herring v. New York, 422 U. S. 853, 862 (1975). It is fundamentally unfair for appointed counsel 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). Indeed, even the Commonwealth concedes that “due process requires that the attorney conduct a conscientious and meaningful review of the case and the record.” Tr. of Oral Arg. 14. The Superior Court’s criticism of the trial counsel’s review of the record as insufficient was in those terms, since Finley’s appellate counsel was able to list several issues of *569arguable 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 individuals. There is no rational basis for assuming that petitions submitted by indigents for collateral review will be less meritorious than those of other defendants. It is hard to believe 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 imposition of the Anders requirements. Otherwise, “[t]he indigent, 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).

HH <1

The Court transforms Finley’s right to effective counsel into a right to a meaningless ritual.10 In the face of the identification by the Superior Court of three possible means of ensuring adequate representation, the Court was without jurisdiction to render its decision. “Respect for the independence 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 independent state ground.” Michigan v. Long, 463 U. S., at *5701040. I would therefore dismiss the petition as improvidently granted.

I respectfully dissent.

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.

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

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 Supreme 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 unnecessary” if counsel conducted an exhaustive examination of the record and the lower court concludes that the petitioner’s claims are completely frivolous).

The Superior Court found that the McClendon requirements were not satisfied. “Here, there is no mention of an exhaustive search nor the required 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 ... at the appellate level.” 330 Pa. Super., at 322, 479 A. 2d, at 572 (footnotes omitted).

The Superior Court’s instructions to the trial court were as follows:

“Since the procedures utilized herein were defective, they acted to deprive 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.

There are several additional reasons why the Court should not decide the validity of the McClendon requirements. First, any holding that determines the applicability of the McClendon requirements to collateral review 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. v. Oklahoma, 334 U. S. 62, 69-71 (1948). Second, the validity of the 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.

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, hypothetical or contingent questions, ... or to decide any constitutional question in advance of the necessity for its decision, ... or to formulate 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 question except with reference to the particular facts to which it is to be applied Public Workers v. Mitchell, 330 U. S. 75, 90, n. 22 (1947); see also Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 510 (1975) (Rehnquist, J., dissenting).

In the instant case, the Commonwealth sought discretionary review of the Superior Court’s decision in the Pennsylvania Supreme Court. Review was granted, and the matter was briefed and argued. The court, however, ordered that the appeal be dismissed “as having been improvidently 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).

This right to counsel on collateral review is of special significance to Finley because the Superior Court found several arguably meritorious issues 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.

I disagree with the Court’s interpretation that the Commonwealth's obligations, as a matter of state law, were conclusively determined by the trial court. In my view, therefore, today’s holding does not preclude a determination of this case under the Commonwealth’s own laws and Constitution. See South Dakota v. Opperman, 428 U. S. 364, 396 (1976) (MARSHALL, J., dissenting).