Moss v. Collins ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________________________
NO. 91-2281
______________________________
BILLY ROY MOSS
Petitioner-Appellee,
versus
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellant,
Appeal from the United States District Court
for the Southern District of Texas
(May 22, 1992)
Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.1
LITTLE, DISTRICT JUDGE:
Appellee Billy Roy Moss seeks federal habeas corpus relief.
The district court granted Moss partial habeas relief based on its
finding that Moss received ineffective assistance of appellate
counsel in violation of Anders v. California, 386 U.S. 738, 87
S.Ct. 1396 (1967). Additionally, the court made a determination
that Moss's application was not an abuse of the writ of habeas
corpus. Appellant James A. Collins, on behalf of the Texas
Department of Criminal Justice (hereinafter the State), appeals
1
District Judge of the Western District of Louisiana,
sitting by designation.
both elements of the district court's decision. For the reasons
set forth below, we affirm the district court's ruling that Moss
has not abused the writ, and we reverse the court's determination
that Moss received ineffective assistance of counsel.
I. Facts
Billy Roy Moss was charged with the felony offenses of
aggravated robbery and unlawful possession of a firearm for a 1977
holdup of a liquor store in Houston, Texas. During the holdup Moss
pistol whipped the store's manager. Separate trials for each
offense were held in the 228th District Court of Harris County,
Texas. In August of 1977 Moss was convicted of aggravated robbery
and sentenced to ninety-nine years in prison. In October of the
same year Moss was convicted of unlawful possession of a firearm by
a felon and sentenced to life imprisonment. The penalties for both
of Moss's convictions were enhanced by two prior felony
convictions. The Texas Court of Criminal Appeals affirmed these
convictions in June of 1978. Moss v. State, Nos. 58, 613 and 58,
614 (Tex. Crim. App. June 14, 1978).
Moss filed two petitions for habeas relief in the Texas state
court, but both were denied. Moss then filed his first petition
for federal writ of habeas corpus on 4 October 1979. Moss filed a
second petition for federal habeas corpus with the Southern
District of Texas on 9 December 1985. The district court ruled
that the second filing was an abuse of the writ. On appeal, this
court affirmed in part and reversed in part, and remanded the case
for a determination as to whether Moss had actual knowledge of the
2
legal significance of the facts underlying his second petition at
the time when his first petition was filed. Moss v. Lynaugh, 833
F.2d 1088 (5th Cir. 1987).
After an evidentiary hearing before a magistrate, a report and
recommendation issued suggesting that habeas relief be granted in
part and denied in part, and that Moss's convictions be set aside
unless the Texas appellate court grants an out-of-time appeal
within 90 days. The district court adopted the recommendations of
the magistrate and issued a judgment granting Moss partial habeas
relief. The state appeals that judgment.
II. The Record of the Hearing before the Magistrate
Upon commencing the hearing, the magistrate declared that the
issue of abuse of writ would not be addressed and that he had
determined that the Moss had not abused the writ. Preserving its
right on appeal, the State entered a timely objection. The report
and recommendation states:
After reviewing all of the documents filed in this case,
after reviewing the state court records filed with the
court in this case, and after hearing the testimony of
Moss, the Court concludes that, even though Moss may have
known the existence of certain operative facts, he
certainly had insufficient grasp of the legal
significance of those facts to merit a finding that he
abused the writ. Moss, who is virtually illiterate . .
. had no intention of withholding issues to harass
respondent or to piecemeal his litigation.
The magistrate's report also finds that Moss received
ineffective assistance of appellate counsel in violation of Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). The report
stated that Moss was denied his right as an indigent to "be
furnished the trial record and be allowed time by the appellate
3
court to raise any points that he chooses." (citing Anders, 386
U.S. at 744). This finding was based on stipulations delivered at
the evidentiary hearing that revealed that Moss had not been
permitted to review his appeal records and that he did not receive
the opportunity to file a pro se brief before his conviction was
affirmed.
The report also stated that, other than the Anders violation,
"[a]ll of the asserted grounds for relief advanced to date by Moss
in his various petitions are either utterly lacking in merit or are
without any factual basis for raising." Further, the magistrate
found that the appointed counsel's briefs "marginally" complied
with the requirements of Anders. Additionally, but of
significance, the magistrate noted that appellate counsel did not
move to withdraw as attorney for Moss.
The State argued that under Lockhart v. McCotter, 782 F.2d
1275 (5th Cir. 1986), Moss's petition should be denied because he
did not show prejudice, i.e., but for counsel's alleged errors
there is a reasonable probability that the conviction would be
reversed on appeal. The magistrate responded that the question of
prejudice would effectively be presumed--that Moss need not show
specific acts of unprofessional conduct to be entitled to relief on
an Anders violation, even though no nonfrivolous issues had yet
been raised. The magistrate also stated that Penson v. Ohio, 488
U.S. 75, 109 S.Ct. 346 (1988), which directed that a prejudice
analysis is inapplicable in the case of an Anders violation,
preempts application of Lockhart.
4
III. Abuse of Writ
The ruling that Moss has not abused the writ of habeas corpus
will be reversed only for abuse of discretion. Shouest v. Whitley,
927 F.2d 205, 207 (5th Cir. 1991). In this case, the district
court appears to have done exactly as the November 1987 remand
order directed: it made a determination as to whether Moss had
abused the writ process by filing a second habeas corpus petition.
Review of that issue is, however, unnecessary because of our
determination on the merits of Moss's petition.
IV. Ineffective Assistance of Appellate Counsel
A criminal defendant may not be denied representation on
appeal based on appellate counsel's bare assertion that an appeal
has no merit. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967). Should appellate counsel move to withdraw
from representation, he must file a brief advising the court of
anything that might arguably support the appeal. Id. at 744.
Likewise, before it considers the case on its merits without the
assistance of counsel, the appeals court must first find that there
are no nonfrivolous issues for appeal. Id. Additionally, Anders
directs that "[a] copy of counsel's brief should be furnished to
the indigent, and time allowed him to raise any points that he
chooses." Id.Although it does not dispute that Moss was denied the
opportunity to file a pro se brief on appeal, the State argues that
Moss must show prejudice -- i.e., a reasonable probability that his
conviction would be reversed on appeal due to certain untoward
5
professional deficiencies of his counsel -- as required by
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). The magistrate dismissed the State's argument in the
light of Penson v. Ohio 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300(1988), which held that the prejudice showing of Strickland was
inappropriate where the appointed counsel is allowed to withdraw
without meeting the Anders requirements.
The Supreme Court in Penson reiterated the rule that
"``[a]ctual or constructive denial of counsel altogether is legally
presumed to result in prejudice.'" Id. at 88 (citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
In Penson, appointed counsel prematurely withdrew, leaving the
accused without counsel while the case was under appellate review.
Discussing the minimum briefing requirements set forth in Anders,
the Court stated that only after the appellate counsel has filed
the Anders brief and "the appellate court finds no nonfrivolous
issue for appeal, may the court proceed to consider the appeal on
the merits without the assistance of counsel." Id. at 80.
Our task here, therefore, is simply to determine whether
actual or constructive denial of appellate counsel has occurred.
Specifically, we must inquire whether Moss has been denied counsel
by the lack of opportunity to review the record and file a pro se
brief on appeal. Conversely, if Moss has not been denied counsel,
Strickland requires that he show a reasonable probability that his
conviction would be reversed on appeal but for certain lapses by
his lawyer. Strickland, 466 U.S. at 695; see also Ricalday v.
6
Procunier, 736 F.2d 204, 205-6 (5th Cir. 1984); Hamilton v.
McCotter, 772 F.2d 171, 182 (5th Cir. 1985). Both the deficiency
and prejudice aspects of the ineffectiveness inquiry present mixed
questions of law and fact.
The Fifth Circuit's analysis of the Anders requirements has
focused on two areas: (1) whether counsel has prematurely withdrawn
(before filing an Anders brief, as in Penson); and, (2) whether an
adequate Anders brief was filed (advising the court of any
nonfrivolous issues on appeal). In Lombard v. Lynaugh, 868 F.2d
1475 (5th Cir. 1989), we concluded that, even where counsel did not
withdraw prematurely, the petitioner was not required to show
Strickland-type prejudice if he "was afforded almost no appellate
representation whatever, and there were non-frivolous appeal
issues." Id. at 1481 (emphasis supplied). The appellate counsel in
Lombard filed an Anders brief that, although it stated that the
appeal was without merit, did not call attention to any of the
arguable issues in the case. Id. at 1480. The fact that there were
nonfrivolous grounds for appeal was critical to our determination
that counsel's failure to add such grounds to his brief presented
circumstances "sufficiently analogous to those in Penson to prevent
the utilization of the Strickland prejudice test." Id. at 1484.
In this case, an adequate Anders brief was filed. The only
possible infirmity here lies in the petitioner not being given the
record and the opportunity to file his own pro se brief. However,
the record does not indicate how counsel provided less than
effective assistance. The report states that Moss "was returned to
7
the Texas Department of Corrections on December 5, 1978, without
having been permitted to review the records . . . , [and that]
[p]etitioner did not receive the opportunity to file a pro se brief
before his convictions were affirmed." This suggests that counsel
may not have reviewed the record with Moss or advised him that he
might file a pro se brief. But was he required to do so?
Under these circumstances, we find that counsel's actions did
not in any way deny Moss his right to appellate counsel. First,
counsel did not withdraw. Indeed, the magistrate observed in the
report that the instant case differs from Penson in that "appellate
counsel never withdrew as petitioner's counsel and the Court of
Criminal Appeals, after review of the record, determined the
appeals were ``wholly frivolous and without merit.'" After
reviewing the records in both of Moss's cases, appellate counsel
filed an Anders brief and awaited the decision of the Texas Court
of Criminal Appeals. Given these facts, it cannot be said that
Moss was denied actual assistance of counsel; nor was he left
unrepresented during his appeal.
Second, and most importantly, Moss had no nonfrivolous issues
to raise on appeal.2 We have never been presented with any
nonfrivolous issues that could have been asserted by Moss's
counsel. Moreover, even if counsel had delivered the record to
Moss, there would have been little advice he could have given him
2
The magistrate's report agrees with the finding of the
Texas Court of Criminal Appeals that Moss's grounds for appeal
were "wholly frivolous and without merit." The magistrate stated
that "[a]ll of the asserted petitions are either utterly lacking
in merit or are without any factual basis for raising."
8
regarding pro se appeal. These facts push this case finally
outside the rationale of Anders: to ensure that counsel is not
allowed to withdraw without showing that there are no nonfrivolous
issues for appeal. Penson, 488 U.S. 80. Anders requires that any
request to withdraw be accompanied by a brief "referring to
anything in the record that might arguably support an appeal." 366
U.S. at 744. Anders does not require appointed counsel to create
arguments. Rather, the issue is whether there are any grounds for
appeal. If counsel concludes that his client has no nonfrivolous
grounds for appeal after a good faith examination of all of the
procedural and substantive facts, he must indicate it in the brief
and await the court's decision. Based on counsel's brief and the
record, the appeals court will determine whether counsel has
dispatched his duties; if the court agrees that there are no
nonfrivolous grounds for appeal, nothing further is expected from
appointed counsel by either Anders or its progeny. The mandatory
requirements of Anders were complied with in this case, and Moss
was not denied the assistance of effective appellate counsel.
Thus, the district court erred in finding that Moss did not need to
show Strickland-type prejudice.
Given that he has demonstrated no nonfrivolous grounds of
appeal, Moss has clearly not shown a reasonable probability that
his convictions would be overturned had he been given counsel's
brief or allowed time to file his own brief. Because there has
been no actual or constructive denial of counsel and Moss has not
shown that he was prejudiced by any specified irregularity, the
9
district court erred in granting habeas relief.
Although we agree with the district court's determination that
Moss did not abuse the writ when he filed a second petition for
habeas corpus, we must reverse the district's court grant of habeas
corpus relief. For the foregoing reasons, we REVERSE the district
court's grant of petitioner's writ of habeas corpus, and RENDER
judgment denying his petition.
10