F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 4 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-3146
ROBERT J. SNITZ,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 01-CV-3076-KHV)
Submitted on the briefs:
Robert J. Snitz, Pro Se.
Eric F. Melgren, United States Attorney, Kim M. Berger, Assistant United States
Attorney, Kansas City, Kansas, for Plaintiff-Appellee.
Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.
EBEL , Circuit Judge.
Defendant Robert J. Snitz appeals from a district court order denying his
motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, in which
he challenged his conviction, pursuant to a guilty plea, of possession with intent
to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). Snitz asserted
that his plea was not knowing and voluntary; that the drugs underlying his
conviction were discovered pursuant to an illegal search of his home; that counsel
rendered ineffective assistance in the trial court proceedings by failing to
challenge the search and by assuring him of a sentence reduction which did not
occur; and that counsel failed to pursue a direct appeal as requested. After
denying the motion, the district court granted a certificate of appealability on the
last issue because its holding, that counsel’s failure to file the requested appeal
did not warrant relief given the meritlessness of defendant’s asserted claims of
error, was arguably in conflict with precedent presuming prejudice when attorney
nonfeasance forfeits a client’s direct criminal appeal. We hold that the district
court did indeed deviate from the established understanding of prejudice in this
context and, accordingly, we vacate its order on collateral review and remand
with directions to vacate and reenter the judgment of conviction and sentence to
enable defendant to pursue a direct appeal. 1
1
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
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The Supreme Court has recognized repeatedly over the last thirty years that
a lawyer who disregards specific instructions to perfect a criminal appeal acts in a
manner that is both professionally unreasonable and presumptively prejudicial.
See Roe v. Flores-Ortega , 528 U.S. 470, 477, 484-85 (2000); Peguero v. United
States , 526 U.S. 23, 28 (1999); Evitts v. Lucey , 469 U.S. 387, 391-92, 399-400
(1985); Rodriquez v. United States , 395 U.S. 327, 329-30 (1969). We have
consistently adhered to this rule. See, e.g. , Johnson v. Champion , 288 F.3d 1215,
1228 (10 th Cir. 2002) (following Abels v. Kaiser , 913 F.2d 821, 823 (10 th Cir.
1990)); Hannon v. Maschner , 845 F.2d 1553, 1558-59 (10 th Cir. 1988). The
underlying principle is that “‘[t]hose whose right to an appeal has been frustrated
should be treated exactly like any other appellan[t]’” and, thus, the would-be
appellant should not have to satisfy a special threshold “requirement . . . [to]
‘specify the points he would raise were his right to appeal reinstated.’” Roe , 528
U.S. at 485 (quoting Rodriquez , 395 U.S at 330).
In this case, the district court acknowledged defendant’s “credible
testimony that immediately following his sentencing, he told his attorneys he
wanted to appeal his sentence.” R., doc. 64 at 12. The court also acknowledged
what it characterized as the “general rule” of presumptive prejudice established in
the case law cited above. Id. However, the court held that the presumption was
“defeated” here “because [defendant] would not have won on either of his two
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arguments on appeal” and “because defendant’s present attorney admitted that an
appeal on either issue would have been futile.” 2
Id. at 12-13.
In effect, the district court held that while a defendant whose direct appeal
has been lost by counsel is not required to specify the issues he would have raised
in order to show prejudice, if he nevertheless suggests what his appellate issues
would have been (e.g., by asserting additional, substantive claims in his § 2255
motion), he forfeits the presumption of prejudice and must demonstrate the merit
of those claims before relief will be granted. 3
The district court did not cite any
authority for this significant qualification on the presumptive-prejudice principle,
nor has the government referred us to any in its appellate brief. We consider such
an approach not only foreclosed as a matter of specific precedent but contrary to
broader values embodied in and implemented by the criminal appellate process.
With regard to precedent, the district court’s holding on prejudice does not
draw out an implication inherent in the case law, or refine the law in a manner at
least consistent with, if not compelled by, the cases. On the contrary, its holding
2
The court referred only to two arguments, as defendant’s allegations of trial
counsel ineffectiveness would appropriately have been reserved for collateral
review. See United States v. Pearl , 324 F.3d 1210, 1216 (10 th Cir.), cert. denied ,
123 S. Ct. 2591 (2003).
3
There is an obvious structural pressure on the § 2255 movant to assert
substantive issues at the same time he raises a presumptive-prejudice claim: if he
raises only the latter and his motion does not prevail, all other issues he could
have raised are subject to the second-or-successive bar in § 2255 paragraph 8.
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substantively conflicts with the precedent it purports to apply. The sharpness of
this conflict may be obscured somewhat by the court’s focus on one particular
formulation of the presumptive-prejudice principle framing it in terms of merely
an exemption from specifying issues–an exemption that might be seen simply to
drop out of the analysis if the defendant nevertheless specifies his claims of error.
But the conflict is readily apparent when the district court’s holding is compared
to other statements of the principle framed more directly in terms of not having to
demonstrate the merit of the lost appeal. There is no tenable way to reconcile the
district court’s denial of relief, based on its conclusion that defendant would not
have prevailed on appeal, with the precept that when courts find that a requested
appeal has not been taken, “ they do not consider the merits of arguments that the
defendant might have made on appeal, ” Abels , 913 F.2d at 823 (emphasis added);
see Roe, 528 U.S. at 485 (stating defendant who instructed counsel to file appeal
“was entitled to a new appeal without any further showing ” (emphasis added));
Peguero , 526 U.S. at 28 (stating “when counsel fails to file a requested appeal, a
defendant is entitled . . . to an appeal without showing that his appeal would
likely have had merit ” (emphasis added)).
This is not a matter of formalistic compliance with a technical rule merely
postponing the inevitable denial of relief on the merits. By treating the defendant
exactly like any other appellant, the precedent we preserve intact today safeguards
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important interests with concrete and potentially dispositive consequences which
can be guaranteed only by the direct-appeal process and the concomitant right to
counsel. When a criminal defendant exercises the right to seek appellate review
of his conviction, both counsel and the appellate court are invested with critical
responsibilities. Of particular relevance here are those recognized in Anders v.
California , 386 U.S. 738, 744 (1967), and clarified in subsequent cases. See, e.g. ,
Smith v. Robbins , 528 U.S. 259, 279-81 (2000); Penson v. Ohio , 488 U.S. 75,
80-85 (1988); McCoy v. Court of Appeals of Wis., Dist. 1 , 486 U.S. 429, 438-39,
442-43 (1988). While dealing specifically with the standards and procedures by
which a court may allow appointed counsel to withdraw from representation and
then dispose of the remaining uncounseled appeal, this line of authority has
broadly articulated the constitutional duties that an appellate court and counsel
fulfill. This same authority necessarily reflects the corresponding constitutional
guarantees the would-be appellant is denied when counsel forfeits an appeal. The
point we emphasize here is that these lost guarantees cannot effectively be
replaced by a collateral prejudice assessment of the sort conducted by the district
court in this case.
The basic principle underlying the cited cases is that, aside from when an
appellant elects to proceed pro se, every direct criminal appeal must be briefed on
the merits by counsel and decided accordingly by the court unless, after thorough
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review of all pertinent proceedings, the appeal is determined initially by counsel
and then independently by the court to be wholly frivolous. See generally Smith ,
528 U.S. at 279-80 (discussing and applying Court’s present understanding of its
“chief cases in this area,” including Anders , Penson and McCoy ). 4
As for the professional responsibilities of counsel,
the appellate lawyer must master the trial record, thoroughly research
the law, and exercise judgment in identifying the arguments that may
be advanced on appeal. . . . Only after such an evaluation has led
counsel to the conclusion that the appeal is “wholly frivolous” is
counsel justified in making a motion to withdraw. This is the central
teaching of Anders .
McCoy , 486 U.S. at 438-39 (footnote omitted); see Penson , 488 U.S. at 84-85
(noting appeals, like trials, “require careful advocacy to ensure that rights are not
forgone and that substantial legal and factual arguments are not inadvertently
passed over”); see also Smith , 528 U.S. at 281 (noting importance of counsel’s
brief in “ensur[ing] that a trained legal eye has searched the record for arguable
4
Here we observe that the court did not even purport to consider
frivolousness ; it merely noted its view, with which defendant’s attorney evidently
concurred, that defendant would not ultimately have prevailed on appeal. Thus,
the district court indirectly deprived defendant of his appeal rights, by refusing to
remedy their forfeiture by counsel, on the basis of a determination plainly
insufficient to authorize such a forfeiture directly under Anders procedures. See
Smith , 528 U.S. at 279. We hasten to add, however, that the constitutional
difficulties with the district court’s approach would not be obviated merely by use
of a more appropriate standard for its collateral assessment of prejudice. The
duties of counsel and the court–and the corresponding protections they afford the
appellant–recognized in the Anders case law go much deeper than that.
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issues”). The performance of these duties is enforced by the court, which may not
allow an attorney to withdraw until it “‘satisf[ies] itself that the attorney has
provided the client with a diligent and thorough search of the record for any
arguable claim that might support the client’s appeal.’” Penson , 488 U.S. at 83
(quoting McCoy , 486 U.S. at 442) . The district court’s recitation that defendant’s
§ 2255 counsel conceded the futility of appealing the two issues defendant himself
had raised did not touch on counsel’s essential role in bringing professional
expertise to bear in identifying issues. Indeed, it is not clear from the court’s
discussion whether counsel even read the record for this purpose. Furthermore,
there is in any event a critical difference between counsel’s issue-spotting and
argument-presentation on direct appeal and in § 2255 proceedings: because the
right to counsel extends to appeal but not collateral review, the adequacy of
counsel’s performance of this duty on appeal may subsequently be tested though a
claim of ineffective assistance, see Smith , 528 U.S. at 284-87, while no such
corrective is available with respect to § 2255 proceedings, see Sanchez v. United
States , 50 F.3d 1448, 1456 (9 th Cir. 1995); Dyer v. United States, 23 F.3d 1421,
1423 (8 th Cir. 1994); see also Hunt v. Nuth , 57 F.3d 1327, 1340 (4 th Cir. 1995).
The court’s obligation does not end once it concludes that counsel reviewed
the record and found no error. Because it is “the court–not counsel” that
ultimately “decide[s] whether the case is wholly frivolous,” Anders , 386 U.S. at
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744, counsel’s assessment triggers the final responsibility of the court, which
must “itself conduct ‘a full examination of all the proceeding[s] to decide whether
the case is wholly frivolous.’” Penson , 488 U.S. at 80 (quoting Anders , 386 U.S.
at 744). Here, again, the district court referred only to the two claims defendant
raised, giving no indication that it had reviewed the record with an eye toward
uncovering additional potential claims. And, to the extent that the court deemed
the concession by defendant’s counsel sufficient to obviate the need for such
independent judicial review, its understanding of the constitutional rights and
duties involved flies directly in the face of the cited authorities.
Finally, we note that the Supreme Court considered and flatly rejected a
prejudice argument in the Anders context analogous to the position taken by the
district court here. In Penson , the State argued that even if the defendant had
been denied representation on appeal, the error did not involve actionable
prejudice under Strickland v. Washington , 466 U.S. 668 (1984). The thrust of the
State’s position was that because the appellate court had gone on to review the
defendant’s convictions on the merits and had held that (with one exception) there
were no grounds for reversal, the loss of counsel’s assistance through the Anders
violation could not have had an adverse effect on the outcome of the proceeding.
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Adhering to a presumptive-prejudice rule that mirrors the rule we follow here, 5
the Court succinctly exposed the fallacy in the State’s argument. By excusing an
Anders violation on the basis of a prejudice determination lacking the very
constitutional protections Anders was meant to guarantee, the State’s position
effectively wrote Anders out of the process. Thus, “[t]he primary difficulty with
the State’s argument [and the district court’s parallel approach to the Rodriquez
violation here] is that it proves too much. . . . [A]dopting the State’s view would
render meaningless the protections afforded by . . . Anders .” Penson , 488 U.S. at
86.
Defendant is entitled to a direct appeal of his conviction. To effectuate this
right, we direct the district court to vacate and reenter its judgment of conviction
and sentence to allow defendant to file a timely appeal. Further, as defendant
must be treated “exactly like any other appellant,” his appeal should not be
limited in scope or rigor of review by considerations of issue preclusion which
might be thought to arise from the district court’s disposition of the substantive
claims asserted herein. We therefore also fully vacate the district court’s
judgment in this § 2255 proceeding.
5
Prejudice is presumed in the Anders context based on the “complete denial
of counsel,” Smith , 528 U.S. at 286, while prejudice is presumed in the present
context based on the “even more serious denial of the entire judicial proceeding
itself,” Roe , 528 U.S. at 483.
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The judgment of the district court in this § 2255 proceeding is VACATED,
and the cause is REMANDED with directions to vacate and reenter defendant’s
judgment of conviction and sentence to allow a direct appeal therefrom.
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