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 VOLUME 14 - CHAPTER 295
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295.1 Right To Meaningful Appellate Review

    295.1.2 Right To Effective Representation Of Counsel On Appeal

    295.1.2.1 Complete Denial Of Counsel On Appeal
    295.1.2.2 Ineffective Assistance Of Counsel On Appeal: Failure Of Appellate Counsel To Raise Specific Issues
    295.1.2.3 "No Merit" Briefs: Anders/Wende
    295.1.2.4 Appellate Counsel Who Served At Trial Should Never File Anders/Wende Brief
    295.1.2.5 Self Representation On Appeal
    295.1.2.6 Ineffective Assistance Of Counsel On Habeas Corpus

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 VOLUME 14 - CHAPTER 295

APPELLATE PRACTICE NOTE: Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674] does not apply, and prejudice is presumed, where a defendant has been actually or constructively denied the assistance of appellate counsel altogether (Penson v. Ohio (1988) 488 US 75, 85 [109 SCt 346; 102 LEd2d 300]), or the defendant has been totally denied the right to appeal. (See Lozada v. Deeds (9th Cir. 1992) 964 F2d 956, 958; see also Berenbeim v. U.S. (10th Cir. 1948) 164 F2d 679, 684 [right to counsel in first state habeas petition which was his "first and only" opportunity to appeal].)

    In Roe v. Flores-Ortega (2000) 528 US 470 [120 SCt 1029; 145 LEd2d 985], the court rejected an argument that counsel's performance is per se deficient if he/she fails to file a notice of appeal within the applicable time limits absent evidence that defendant requested that he/she do so. The court held that while consulting with a client regarding his desire to appeal is the better practice, failure to do so is evaluated under Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674]. Counsel has a constitutionally imposed duty to consult with the client regarding appeal only where a rational defendant would want to appeal, or the defendant has affirmatively demonstrated to counsel that he is interested in appealing. To show prejudice, the defendant must demonstrate that there is a reasonable probability that but for counsel's failure, he would have appealed. (Ibid.; see also Allen v. Taylor (E.D.Va. 2001) 2001 U.S. Dist. LEXIS 12312 [duty of appellate counsel to perfect statutory right to continue his appeal to a higher court].)

See Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: Appellate counsel is obligated to "raise crucial assignments of error that arguably could have resulted in reversal." (People v. Lang (CA 1974) 11 C3d 134, 142 [113 CR 9]; see also In re Harris (CA 1993) 5 C4th 813, 832-34 [21 CR2d 373]; State v. Howard (OH 1989) 537 NE2d 188, 195 [failure of defendant's former counsel to raise error on direct appeal concerning giving of improper Allen charge as supplemental instruction to deadlocked jury constituted ineffective assistance of counsel]; see also Eagle v. Linahan (11th Cir. 2001) 268 F3d 1306 [appellate counsel ineffective for failing to raise a Batson claim that was apparent on the record].) This duty is especially important as to errors in instructing the jury since this is one of the most fertile areas for finding reversible error. (See Carter v. Bowersox (8th Cir. 9/11/01) 265 F3d 705 [appellate counsel was ineffective for failing to raise, as plain error, the trial court’s error in omitting a key sentencing instruction]; see also People v. Thompkins (CA 1987) 195 CA3d 244, 252 [240 CR 516] ["... [N]othing results in more cases of reversible error than mistakes in jury instructions]; People v. Rhoden (CA 1972) 6 C3d 519, 525-29 [99 CR 751] [appellate counsel ineffective for failing to raise arguably reversible instructional errors].)

    Under the two-pronged Strickland [Strickland v. Washington (1984) 466 US 668 [104 SCt 2052; 80 LEd2d 674]] test the determination must focus on whether the omission was sound strategy and whether the error, if raised, was reversible. (See e.g., Miller v. Keeney (9th Cir. 1989) 882 F2d 1428, 1434; U.S. v. Glover (10th Cir. 1996) 97 F3d 1345, 1349.) However, as a practical matter the inquiry shouldn't change much. Ultimately, the substantive issue must be evaluated to determine if there was "reasonable probability of reversal" from the omitted claim. (Miller, 882 F2d at 1434.) If there was, then it is prejudicial under Strickland, and even a strategic decision to omit the claim should not be justified as acceptable strategy. (How is it strategically reasonable to omit a winning argument?)

    In sum, the defendant need not show he was entitled to a reversal, but only that inexcusable failure of appellate counsel to raise crucial assignments of error [occurred], which arguably could have resulted in reversal.

See Capital Punishment Handbook [1.13.3 a. Ineffective Assistance Of Counsel: Prejudice: General Principles And Authorities].

See also Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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PRACTICE NOTE: Under Anders v. California (1967) 386 US 738, 741 [87 SCt 1396; 18 LEd2d 493] and People v. Wende (CA 1979) 25 C3d 436, 441-42 [158 CR 839], appellate counsel who finds no "arguable issue" in the record submits a "no-merit" brief to the appellate court which must then review the entire record for arguable issues. (See also Smith v. Robbins (2000) 528 US 259 [120 SCt 746, 759; 145 LEd2d 756] [California's Wende procedure for determining when an indigent's direct appeal is frivolous affords adequate and effective appellate review for criminal indigents].) However, counsel's obligation to raise arguable issues is actually broader in scope than the Strickland standard for ineffective counsel. Anders creates a very low threshold for which arguments counsel must brief for the court. (See Lombard v. Lynaugh (5th Cir. 1989) 868 F2d 1475, 1487 (Goldberg, J., concurring); United States v. Griffy (9th Cir. 1990) 895 F2d 561, 563.) Certainly, counsel need not argue only "winning" arguments. Instead, counsel must bring to the court's attention "anything in the record that might arguably support the appeal." (Anders, 386 US at 744.)

    In this regard, counsel has the duty to advocate "changes in the law if argument can be made supporting change." (People v. Feggans (CA 1967) 67 C2d 444, 447 [62 CR 419].) For purposes of California law, an issue is "arguable" when it has some potential for success, meaning some possibility of a result requiring reversal or modification of the judgment. (People v. Johnson (CA 1981) 123 CA3d 106, 109 [176 CR 390].)

See Capital Punishment Handbook [1.19 a. Frivolous And Nonfrivolous Appeals: Authorities].

See also Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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 VOLUME 14 - CHAPTER 295

RESEARCH NOTES:

See Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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APPELLATE PRACTICE NOTE: "Neither the holding nor the reasoning in Faretta requires California to recognize a constitutional right to self representation on direct appeal from a criminal conviction." (Martinez v. Court of Appeal (2000) 528 US 152 [120 SCt 684, 692;145 LEd2d 597].)

RESEARCH NOTES:

See Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].

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 VOLUME 14 - CHAPTER 295

    See generally NCJIC Chapter 298 [Habeas Corpus].

    See also NCJIC 299.2 [Procedural Prerequisites For Raising Federal Constitutional Claim on Federal Habeas Corpus].

    See also NCJIC 299.3 [Habeas Corpus Standards].

See Capital Punishment Handbook [2.2 a. Right To Counsel And Right to Waive Counsel: General Principles And Authorities].

See also generally, NCJIC 305.1.12 [Appeal].