specially concurring:
It is with ebullient delight that I concur in the majority’s result in this case. However, I find Penson v. Ohio, — U.S. -, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), to be more than a closely analogous case; I believe Mr. Lombard was constructively denied the effective assistance of appellate counsel, and as such, his situation squarely falls under the protection of Penson and Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
Penson creates two categories of denial of effective assistance of appellate counsel. The first category encompasses criminal defendants who are actually or constructively denied the assistance of an advocate for their first appeal as of right. In such situations, prejudice is presumed and the petitioners are entitled to habeas relief unless the state appellate court permits them a new appeal with the appointment of an advocate as their attorney. The second category involves cases in which the defendants’ attorney fails to press a particular argument on appeal. In such situations, the petitioners must prove prejudice as defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984), that is, that “there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the pro*1485ceeding would have been different.” Id.1 When a habeas petitioner asks a federal court to decide in which category his claim of denial of effective assistance of appellate counsel falls, the federal court is under a duty to make such a decision. In so doing, the federal court should keep a sharp eye on the substance of the situation without being overly mesmerized by the form of the matter so as not to elevate form over substance. Because I believe that Lombard was constructively2 denied the assistance of appellate counsel, in toto, I find any discussion of prejudice or harmless error unnecessary.3
An indigent criminal defendant has the constitutional right to the effective assistance of counsel for his or her first appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 393-95, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821 (1985). We must not permit a state court to trespass upon this hallowed ground. The collateral review a federal court engages in, when reviewing the petitioner’s claim of ineffective assistance of appellate counsel, raises an issue of whether a petitioner must show “prejudice” to obtain a Writ of Habeas Corpus. See Penson v. Ohio, — U.S. -, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) (prejudice is presumed); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (prejudice needed).
The majority and I agree that the Supreme Court has created two categories concerning ineffective assistance of appellate counsel. Penson v. Ohio represents the first category. A Penson petitioner can obtain habeas relief without a showing of prejudice because “the '[ajctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.’ ” Penson, 109 S.Ct. at 354 (quoting Strickland, 466 U.S. at 692, 104 S.Ct. at 2067). In Penson, the indigent petitioner was found guilty of several serious crimes. New counsel was appointed to represent him on appeal. The new counsel filed a timely notice of appeal. The attorney then filed with the state appellate court a document captioned “Certification of Meritless Appeal and Motion” in which the attorney certified to the court that he had carefully reviewed the record; that he found no errors requiring reversal, modification and/or vacation of the defendant’s convictions or sentence; and that he would not file a meritless appeal in the matter. In the same document, the attorney also made a motion to withdraw as counsel for the defendant. Penson, 109 S.Ct. at 348-49.
The Ohio Court of Appeals permitted the attorney to withdraw and granted the defendant leave to file a pro se brief if he wished. The state court also stated that it would “independently review the record thoroughly to determine whether any error exist[ed] requiring reversal or modification of the sentence....” Thus the attorney “was permitted to withdraw before the court reviewed the record on nothing more than ‘a conclusory statement by the appointed attorney on appeal that the case *1486ha[d] no merit and that he w[ould] file no brief.’ ” Id. at 349.
The Supreme Court found that the Ohio Court of Appeals had erred in three respects with regard to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). First, the Court held that the attorney’s motion to withdraw should have been denied because his motion did not point out “anything in the record that might arguably support the appeal.” Second, the Ohio court “should not have acted on the motion to withdraw before it made its own examination of the record to determine whether counsel’s evaluation of the case was sound.” Penson, 109 S.Ct. at 351. Third, and what the Supreme Court considered most significant, the state court erred when it failed to “appoint new counsel after it had determined that the record supported ‘several arguable claims.’ ” Id. at 351. The troublesome issue which concerned the Supreme Court concerning this error was that the Ohio court passed upon the merits of the defendant’s case without the benefit of an advocate’s brief, thus depriving itself and the defendant of the “benefit of an adversary examination and presentation of the issues.” Penson at 351. Once the moment of arguable claims arrives, the state court is under a constitutional imperative to appoint new counsel so that the court has the benefit of an “advocate’s brief before deciding the merits.” Penson at 351 (quoting McCoy v. Court of Appeals of Wisconsin, — U.S. -, 108 S.Ct. 1895, 1904-05, 100 L.Ed.2d 440 (1988)). Recently, the Eighth Circuit interpreted Penson v. Ohio, to require release of the defendant when there is a violation of Anders, without any showing of prejudice, “unless the state court reinstates his appeal and appoints counsel to brief all points of arguable merit.” Evans v. Clarke, 868 F.2d 267 (8th Cir.1989); Sanders v. Clarke, 867 F.2d 488, (8th Cir.1989), on remand from the Supreme Court, — U.S. -, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989).
The second category of ineffective assistance of appellate counsel is exemplified by Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). In Jones v. Barnes the criminal defendant complained that his court-appointed attorney did not raise a nonfrivolous issue which the defendant requested the attorney to raise. The attorney did argue three arguably meritorious points in the defendant’s appellate brief. The Supreme Court in Penson found that the failure to raise a particular issue on appeal is subject to the Strickland standard of prejudice rather than the Pen-son presumed prejudice standard. Penson, 109 S.Ct. at 354.
The difference between an Anders/Pen-son case and a Jones v. Barnes case is, of course, a difference in degree between no actual or constructive appellate advocacy, Anders/Penson, and inadequate or incompetent appellate advocacy, Jones v. Barnes. The resulting difference concerning the need for a showing of prejudice is a crucial analytical consequence of the differing content of these two categories of cases.
A federal court must decide upon which side of this fence the particular petitioner’s case falls. This is the point of my difference of opinion with the majority opinion. I find that the brilliance of the majority's opinion in its opening paragraphs is clouded by the fog of the latter portions in which the majority utilizes the language of Strickland prejudice and harmless error.
I believe that Lombard has clearly shown that he was constructively denied the assistance of appellate counsel altogether. We should not permit the form of the attorney’s document to prevail over the substance of the document, or to be more accurate, the absence of any substance on the sheets of paper entitled “Appellant’s Brief” to substitute for an advocate’s brief. The state court, in Lombard’s case, erred by not requiring Lombard’s attorney to file a satisfactory Anders brief.
No case is perfectly tried and the Constitution does not require perfect justice. However, it is difficult to imagine the case which is so hopeless that no piece of evidence in a case, no comment by the prosecutor, nor any ruling by the trial court does not present even the slimmest reed of an arguable issue. This is all Anders requires *1487an appointed attorney to draw to the court’s attention. Certainty of prevailing on appeal is not required. Naturally, this does not mean that every defendant possesses a meritorious appeal. The Anders threshold requires, indeed, a very low level of arguability.
The Anders error in our case, in turn, denied the state court the opportunity to review an adequate Anders brief and appoint new counsel if it found any arguable claims. Therefore, any discussion of prejudice, possibilities, or harmless error is inapplicable to Lombard’s situation. Lombard falls within the purview of Penson v. Ohio’s standard of presumed prejudice.
The formal physical presence of an appellate attorney is not appellate counsel. Lombard’s attorney filed a document which contained no arguments going to the merits of Lombard’s case. Under Anders and Penson, a criminal defendant is entitled to an advocate’s brief unless the attorney seeks to withdraw from the action, which itself requires the attorney to file an An-ders brief. The appellate document that Lombard’s attorney filed as “Appellant’s Brief”, was, in essence, an inadequate An-ders brief without even the attendant motion to withdraw as counsel. It is inadequate because it set forth no “arguable” claims, only a conclusory allegation of no merit. See Penson, 109 S.Ct. at 350-51. In addition, without a motion to withdraw, Lombard was placed in the undesirable situation of his attorney arguing the government’s case without the attorney filing a motion to withdraw. Without the motion to withdraw, the state court was not prompted to consider whether to appoint Lombard new appellate counsel. This difference between Lombard and the Penson and Anders cases makes Lombard’s predicament even more egregious than Penson and Anders. Lombard’s case is a far cry from the “case in which counsel fails to press a particular argument on appeal.” Penson at 354, citing, Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983).
Lombard falls squarely within the necessary protections of Penson v. Ohio, — U.S. -, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988) and Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Thus, any discussion even flirting with the language of Strickland’s prejudice or harmless error analysis is unnecessary. Penson, 109 S.Ct. at 354.4 I therefore concur joyfully in the result and write separately to express my belief that this court should decisively decide on which side of the Anders/Penson and Jones v. Barnes fence Lombard’s case falls. Because I find that Lombard was constructively denied the assistance of appellate counsel altogether, I believe the presumed prejudice standard of Penson applies thereby obviating the need for any prejudice or harmless error discussion. Accord Evans v. Clarke, 868 F.2d 267 (8th Cir.1989); Sanders v. Clarke, 867 F.2d 488 (8th Cir.1989), on remand from the Supreme Court — U.S. -, 109 S.Ct. 831, 102 L.Ed.2d 964 (1989).
. Likewise, on direct appeal, a criminal defendant need not rebut the government’s argument that the denial of defendant’s appellate counsel was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), because "as a matter of law, [such an error] can never be considered harmless.” Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988).
. The term "constructive” means that the court concludes that in substance there was no representation at the appellate level. The form of an attorneys "brief’ will not control the determination of whether the defendant had an attorney at the appellate stage. The filing of a piece of paper with only a caption, which is blank as to any content, is not a brief even if so denoted.
.The majority appears to agree with me at one point that Lombard was constructively denied the assistance of appellate counsel when the majority states "that Lombard in substance was denied any effective assistance of counsel whatever on his direct appeal.” Majority Opinion, at 1484. However, at another point, the majority gives the impression that there is a distinction between Lombard's case and the Penson case because "Lombard was never formally without counsel on his appeal[.]” Because Lombard was never "formally” without counsel, the majority engages in discussion which, in substance, is a discussion of prejudice and harmless error. It is the form over substance logic concerning Lombard's lack of appellate counsel with which I disagree, and I consequently find unnecessary the majority’s prejudice and error analysis.
. It is therefore inappropriate to apply either the prejudice requirement of Strickland or the harmless error analysis of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Satterwhite v. Texas, — U.S. -, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988). Penson v. Ohio, — U.S. -, 109 S.Ct. 346, 353-54, 102 L.Ed.2d 300 (1988).