Duane W. Sanders v. Harold W. Clarke, Warden, Nebraska State Prison

McMILLIAN, Circuit Judge,

dissenting.

I respectfully dissent. Although I agree with the majority that the no-merit brief filed by Sanders’ counsel did not comport with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), I can not agree that Sanders must also show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to obtain relief. Hence, I *1140would affirm the district court’s issuance of a writ of habeas corpus.

The record shows that Sanders’ counsel filed a motion to withdraw because he:

ha[d] thoroughly and conscientiously examined the record in said case, ha[d] briefed all legal issues which might arguably support a direct appeal, ha[d] found none of them arguable on their merits, and ha[d] concluded that a direct appeal [could] only be considered wholly frivolous.

Accompanying this motion was a memorandum brief which set out a summary of the evidence and mentioned several issues: (1) suppression of statements made by Sanders, (2) suppression of the eyewitnesses’ identification of Sanders, (3) the introduction of a composite drawing of the alleged assailant, (4) the sufficiency of the evidence, (5) rulings on objections to evidence, and (6) Sanders’ sentence. None of the identified issues was argued favorably for Sanders; counsel’s conclusion was that there was no error.

The Nebraska Supreme Court, relying upon the motion, held:

No. 44019; State v. Sanders. Motion of court appointed counsel for leave to withdraw appearance sustained; judgment affirmed. See Rule 20-A(8).

209 Neb. xx-xxi (1981). Rule 20-A(8), now Rule 3B(4), provides:

If upon consideration of a motion [to withdraw] and a review of the record, it appears that the decision of the trial court should be affirmed or reversed, the court may take such action on its own motion.

In my opinion, the brief filed by Sanders’ counsel, the opinion of the Nebraska Supreme Court, and Nebraska’s Rule 3B(4) all run afoul of Anders. In Anders, the Court set out four requirements to be satisfied in order for a state to resolve an indigent’s direct appeal without the aid of counsel:

(1)a finding by counsel that the case is wholly frivolous, after a conscientious examination, advise to the court of that finding, and a request for withdrawal;
(2) a brief by counsel referring to anything that might arguably support the appeal;
(3) furnishing the indigent a copy of the brief and giving him time to raise any points he chooses; and
(4) a finding by the court that the case is wholly frivolous.

386 U.S. at 744, 87 S.Ct. at 1400.

The majority holds, and I agree, that the “brief” filed by Sanders’ counsel did not satisfy Item 2. It reads like an amicus curiae filed on behalf of the state, making no arguments for reversal, but rather preempting any such arguments with the conclusory assertion that all possible arguments for reversal would be frivolous. This does not come close to satisfying An-ders, particularly as we have applied that case in Robinson v. Black, 812 F.2d 1084, 1086 (8th Cir.1987), petition for cert. filed, 56 U.S.L.W. 3134 (U.S. Aug. 3, 1987) (No. 87-211) (counsel must “argue his case to the best of counsel’s ability, showing the most favorable side of the defendant’s arguments”).

It is equally clear to me that the Nebraska Supreme Court’s opinion did not satisfy Item 4. The Nebraska court did not make, nor has it ever made, a finding that the case is wholly frivolous. The Nebraska Supreme Court simply stated “affirmed;” there is and was no discussion or any declaration of its findings. Even on the post conviction appeal, State v. Sanders, 220 Neb. 308, 369 N.W.2d 641 (1985), the court did not declare that it had earlier found the direct appeal wholly frivolous. The court merely referred to its summary affirmance rule and cited Anders. In no way can this be said to amount to a finding that the appeal was wholly frivolous as required by Anders. In a footnote, the majority very conveniently attempts to explain away the Nebraska Supreme Court’s lack of compliance with Anders by cavalierly stating:

By affirming Sanders’s conviction upon the no-merit brief under Nebraska Supreme Court Rule 20-A(8) — now Rule 3-B(4) — we think the Nebraska Supreme Court necessarily found the appeal was frivolous. The Rule provides “if, upon *1141consideration of a motion [to withdraw] and a review of the record, it appears that the decision of the trial court should be affirmed or reversed, the court may take such action on its own motion.” The Rule appears to embody the Anders procedure for handling frivolous appeals. This conclusion is buttressed by the fact that in referring to its earlier decision in Sanders’s post-conviction appeal, the Court cited Anders in conjunction with the Rule. State v. Sanders, 220 Neb. 308, 369 N.W.2d 641 (1985). Thus, we believe a finding of frivolousness was inherent in the state court’s ruling.

This, in my opinion, is an impermissible presumption made from a silent record. It certainly seems equally plausible that the Nebraska Supreme Court never considered whether the appeal was frivolous. This abortive attempt by the majority to rewrite the specific and detailed requirements of Anders would even cause Procrustes himself to blush. Here, the Nebraska Supreme Court not once, but twice, had a chance to conform its ruling with Anders; that is, if the appeal was frivolous, it had only to say so and set out its reasons for so concluding.

I also disagree with the majority’s war-rantless conclusion that Rule 3B(4) “appears to embody the Anders procedure for handling frivolous appeals.” On the contrary, Rule 3B(4) on its face clearly conflicts with the holding of Anders. While Anders requires a specific finding that the appeal is frivolous, Rule 3B(4) states a much more lenient standard providing that if the decision of the trial court should be affirmed or reversed the court may proceed to do so.

Aside from my differences with the majority’s application of Anders here, I believe the more fundamental error committed by the majority is the decision to apply the Strickland standard of ineffective assistance of counsel to cases in which counsel files a brief that does not comport with Anders. The majority begins, as it must, by noting that every indigent criminal appellant has the right to an attorney in his first appeal as of right. See Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). But if a state were to completely deny an indigent criminal appellant the right to counsel, would he be required to demonstrate prejudice? I think not. Strickland itself provides that prejudice is presumed if the defendant is denied the actual or constructive assistance of counsel. 466 U.S. at 692, 104 S.Ct. at 2067. Today, however, the majority holds that the indigent criminal appellant must demonstrate prejudice if the state, rather than failing to provide any counsel, instead provides one who dutifully prepares an amicus brief for the state. A more anomalous result could not be reached. I would hold that prejudice is presumed where the only counsel afforded an indigent defendant files a brief in favor of the state.

Moreover, I believe that the majority’s decision to apply Strickland to cases in which counsel has filed a non-conforming Anders brief impermissibly conflicts with the precedent of this circuit. In Robinson v. Black, 812 F.2d 1084 (8th Cir.1987), petition for cert. filed, 56 U.S.L.W. 3134 (U.S. Aug. 3, 1987) (No. 87-211), we held that an indigent criminal appellant was entitled to relief because his attorney filed a brief that was inadequate under Anders. In Robinson v. Wyrick, 635 F.2d 757 (8th Cir.1981), we held that an indigent criminal appellant was entitled to relief because his attorney filed no appellate brief at all. In neither case did we require the appellant to demonstrate prejudice.1 This position is in accord with both of the other circuits which have given this matter careful consideration. *1142See Freels v. Hills, 843 F.2d 958 (6th Cir.1988); Cannon v. Berry, 727 F.2d 1020 (11th Cir.1984).

I believe it is important to remember that we are dealing with the sixth amendment right to counsel, a right that protects and safeguards all of the bundle of other rights and privileges that are so fundamental to the administration of justice; without effective assistance of counsel the whole pretrial, trial, and appellate process becomes blurred. Under our adversarial system of justice, it cannot be argued that the absence of effective assistance of counsel is not prejudicial per se. How could it be otherwise when counsel, as here, surrendered his role as an advocate and donned the cloak of an additional prosecutor? As Chief Judge Lay wrote in Robinson v. Black, 812 F.2d at 1086-87:

Robinson had a right to expect counsel to brief and argue his case to the best of counsel’s ability, showing the most favorable side of the defendant’s arguments. Counsel changed the adversarial process into an inquisitorial one by joining forces with the state and working against his client. Upon Counsel’s withdrawal, Robinson was left to proceed pro se against the state, which had the benefit of appointed counsel’s brief.

Because Anders mandates the protection of such a basic fundamental right as the effective assistance of counsel on appeal, I would affirm the district court’s decision to grant the writ of habeas corpus. The record shows that Sanders has been abandoned by his attorney, who has egregiously put his thumb on the scales of justice as a second prosecutor against his client. No additional prejudice need be shown.

. The majority's assertion that “Robinson can be read as consistent with requiring a showing of prejudice” merely because the Robinson court noted in a footnote a few of the arguments that could have been made had counsel cared is disingenuous. The relative merits of these possible arguments clearly had no role in the court’s analysis. I refrain from pointing out the substantial issues raised by the identification procedures used in connection with the only eyewitness to this crime for fear that I, too, will be misunderstood as dissenting only because prejudice appears on the record.