Hughes v. Booker ( 2000 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 98-60786
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SIMEON HUGHES,
Petitioner-Appellee,
versus
WALTER BOOKER, et al.,
Respondents-Appellants.
Appeal from the United States District Court
for the Southern District of Mississippi
February 24, 2000
Before JOLLY, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Walter Booker, Superintendent of the Mississippi State Penitentiary at Parchman (“the
State”), appeals the district court’s decision granting appellee Simeon Hughes’ (“Hughes”) motion
for a writ of habeas corpus because he received ineffective assistance of appellate counsel in violation
of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and Penson v. Ohio,
488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988). We affirm.
Hughes was convicted of armed robbery in Mississippi state court and subsequently sentenced
as a habitual offender to thirty-four years in prison. On direct appeal to the Mississippi Supreme
Court, Hughes’ appointed counsel filed a brief alleging no specific error and arguing only that:
Following a review of the transcript and record excerpt I do not believe that any
substained [sic] issue evidencing reversible error exists in the trial of this cause.
Nevertheless, the Defendant requests a review of the trial transcript and record
excerpt by the Mississippi Supreme court for legal sufficiency of the evidence and for
any substantial error committed during the course of the trial. Finally according to
Kinningsworth v. State [sic] I have provided the Defendant, Simeon [H]ughes, notice
of his right to appeal pro se by certificate of service.
Although Hughes was granted additional time in which to file a pro se appellate brief, Hughes
declined to do so. The Mississippi Court of Appeals affirmed Hughes’ conviction in an unpublished
opinion.1 Hughes’ pro se application for state post-conviction relief was denied.
Hughes then filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 in the district court. As grounds for relief, he alleged that he had been denied his constitutional
right to a direct appeal and that he had received ineffective assistance of appellate counsel because
his attorney had (1) filed a brief raising no specific issues, and (2) failed to object to a defective
indictment. The district court—adopting a modified version of the magistrate judge’s
reco mmendation— found that Hughes had been denied effective asistance of counsel and that the
decision of the Mississippi Supreme Court on Hughes’ post-conviction motion was an unreasonable
application of federal law. Accordingly, the district court ordered that Hughes’ habeas petition be
1
In affirming Hughes’ conviction, the Mississippi court stated: “On appeal, Hughes
does not raise any specific issue before this Court. Hughes states that he can find no specific instance
of reversible error in this cause. . . . Because Hughes fails to show error on the part of the trial
court, we affirm his conviction. . . . This Court will not assume the burden of briefing any issue which
the Appellant, aided by counsel, cannot find or claim as error. The brief filed on behalf of Hughes
contains neither argument nor support authorities. Accordingly, Hughes cannot overcome the
presumption of correctness accorded to the trial court’s judgment.”
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granted unless the State afforded him an out-of-time direct appeal with the assistance of competent
counsel.
Hughes filed his habeas petition after April 24, 1996, and it therefore subject to the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S.
320, 336, 117 S. Ct 2059, 138 L. Ed. 2d 481, ___ (1997). Because we agree with the district court
that the Mississippi Supreme Court’s decision was “on the merits,” under AEDPA, we may not grant
collateral relief unless the Mississippi Supreme Court’s opinion:
(1) resulted in a decision that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States.
28 U.S.C. 2254(d).
A criminal defendant has a constitutional right to effective assistance of counsel in his first
appeal as of right. See Evitts v. Lucey, 469 U.S. 387, 393-95, 105 S. Ct 830, 834, 83 L. Ed. 2d 821,
___ (1985). In Penson v. Ohio, the Supreme Co urt distinguished between two types of claims
involving denial of assistance of appellate counsel. First, where a petitioner argues that counsel failed
to assert or fully brief a particular claim, he must show t hat his attorney’s performance was both
deficient and prejudicial. See Penson, 488 U.S. at 84, 109 S. Ct. 352-54, 102 L. Ed. 2d 300 (citing
Strickland v. Washington, 466 U.S. 668, 689-94, 104 S. Ct. 2052, 2065-67, 80 L. Ed. 2d 674, ___
(1984)). Second, where the complained-of performance of counsel constituted an actual or
constructive complete denial of the assistance of counsel, prejudice is presumed. See id., 488 U.S.
at 88-89, 109 S. Ct. at 354, 102 L. Ed. 2d at ___ (“the actual or constructive denial of the assistance
of counsel altogether is legally presumed to result in prejudice”) (citation omitted); see also Sharp
v. Puckett, 930 F.2d 450, 451-52 (5th Cir. 1991).
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Penson considered the consequences of an attorney’s withdrawal from representation without
filing a sufficient brief as required by Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed.
493. In Anders, the Supreme Court recognized that counsel could withdraw from representation
without denying an appellant fair representation only where certain safeguards were followed.2 See
id. at 744, 87 S. Ct. at 1400, 18 L. Ed. 493 at ___.
We have previously held that a defendant is constructively denied effective assistance of
counsel where counsel on direct appeal filed a brief asserting no grounds for appeal and
requesting only a review of the record for patent errors. See Lofton v. Whitley, 905 F.2d 885 (5th
Cir. 1990); Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir. 1989). Here, counsel did not file
an Anders brief or seek to withdraw from representation. Instead, Hughes’ attorney filed a brief
stating that he could find no issue “evidencing reversible error.” We agree with the district court
that this was the functional equivalent of withdrawing from representation without complying
with the requirements of Anders.3 See Lofton, 905 F.2d at 888 (“Lofton may have been formally
represented by counsel, but the failure to raise any grounds for appeal was the equivalent of his
2
Under Anders,counsel must conduct a“conscientious examination” of the case before
seeking permission to withdraw from a case. See id. at 744, 87 S.Ct. at 1400, 18 L. Ed. 300. That
request must be accompanied by a brief to the appellate court “referring to anything in the record that
might arguably support the appeal.” id. The appellate court must then conduct a “full examination
of all the proceeding[s] to decide whether the case is wholly frivolous.” Id.
3
The State argues that Hughes’ attorney complied with the allegedly more stringent
withdrawal requirements of Killingsworth v. State, 490 So. 2d 849 (Miss. 1986). We disagree. Under
Killingsworth, counsel who believes his client’s appeal is without merit must (1) fully represent to
the court why the case is meritless and (2) send a copy of that representation to the defendant. The
defendant will then be furnished reasonable opportunity to file his own comments with the court. See
id., 490 So.2d at 851. Here, while Hughes’ counsel informed Hughes o f his right to file a pro se
appellate brief, he failed to fully represent to the court (or his client) why he viewed Hughes’ case as
without merit.
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attorney’s withdrawal.”); see also Lombard, 868 F.2d at 1480 (finding constructive denial of
counsel where attorney “did nothing to attempt to aid Lombard’s appeal beyond the initial
perfecting of the appeal itself.”). Accordingly, under Penson, we apply a presumption of
prejudice.
The State contends that Hughes should nonetheless be denied relief because the only
specific appellate issue that he raises —that his indictment was defective because it did not
conclude with the phrase “against the peace and dignity of the state”—is without merit. Our
previous cases applying Penson have indeed emphasized either that there were non-frivolous
issues for direct appeal, see Lombard, 868 F.2d at 1484 (“[F]or it is in any even clear that if, as
here, there are one or more indisputably nonfrivolous issues for appeal, counsel must do more
than simply file a wholly conclusory ‘no merit’ brief . . . .”); Lofton, 905 F.2d at 890 (“Our review
of the record without the benefit of counsel reveal at least one issue that may have not been
frivolous, even if Lofton might have lost an appeal”), or that the court could not determine
whether nonfrivolous issues existed, cf. Lofton, 905 F.2d at 890 (“Because we cannot determine
that there would have been no nonfrivolous grounds for appeal, and because Lofton’s appellate
counsel asserted no grounds for appeal yet failed to follow the Anders procedures, we hold that
Lofton is entitled to relief.”). In Lombard, we expressly left open the question of whether there
“would be any entitlement to [habeas] relief if there had been no nonfrivolous appellate issue or,
assuming arguendo that the inquiries differ, if we could and did determine beyond a reasonable
doubt that the conviction would have been affirmed on direct appeal had there been fully effective
appellate counsel. Lombard, 868 F.2d at 1484.
Here, the district court found that, at the time that Hughes filed his appellate brief, at least
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one nonfrivolous issue—the form of Hughes’ indictment—existed. While we agree with the
district court on this point, we also agree with the State that this is no longer a valid argument.4
Nonetheless, we hold that the district court was correct in granting Hughes habeas relief. In
presenting its argument, the State essentially asks us to conduct a harmless error or prejudice
analysis. This ignores the clear import of Penson: Once we determine that a defendant has been
constructively denied appellate counsel — as we have here—“any discussion even flirting with the
language of Strickland’s prejudice or harmless error analysis is unnecessary.” Lombard, 868 F.2d
at 1487 (Goldberg, J., specially concurring); see also Penson, 488 U.S. at 88, 109 S. Ct. at 353,
___ L. Ed.2d __ (“It is therefore inappropriate to apply either the prejudice requirement of
Strickland or the harmless-error analysis of Chapman.”).5
More significantly, as the district court correctly noted, the Mississippi Court of Appeals
did not examine the record to determine if any nonfrivolous appellate issues existed. Nor did the
district court make such a determination. It is not the role of this court to scour the record
—unassisted by an Anders brief or a state court ruling—in an effort to identify nonfrivolous
appellate issues. The essence of Hughes’ constitutional deprivation was that he was denied the
effective assistance of an appellate advocate; our independent review of the record cannot remedy
4
Hughes’ indictment, which both mentioned and expressly incorporated a “habitual
offender” exhibit, concluded with the term “against the peace and dignity of The State of Mississippi.”
This satisfies the requirement of §169 of the Mississippi Constitution. See Earl v. State, 672 So. 2d
1240, 1244 (Miss. 1996) (finding that indictment charging defendant with “the habitual offender
allegations as set forth in the attachment hereto” satisfied § 169 as long as it concluded with the
required term). Accordingly, at least following Earl, the defective-indictment issue is frivolous.
5
The State additionally argues that Hughes waived his right to raise the defective
indictment issue on direct appeal and that the issue would be pro cedurally barred if raised on a
subsequent direct appeal. For the reasons set forth directly above, this claim is irrelevant in light of
our finding that Hughes was constructively denied appellate representation.
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this denial. Cf. Lofton, 905 F.2d at 888 (“[W]hen a court had to consider the record without the
advice of counsel, reversal was mandated.”).
Accordingly, we find that the district court was correct in holding that the Mississippi
Supreme Court’s decision was based upon an unreasonable application of Anders and Penson.
The judgment of the district court is therefore AFFIRMED.
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JOLLY, Circuit Judge, concurring specially:
I agree that the result we reach today is required by
Penson’s holding that an irrebuttable presumption of prejudice
arises when a defendant is effectively denied the right to
counsel on appeal. I write separately, however, to point out
that the net effect of the relief that we grant today is zero,
where, over the several years this case has been percolating
through the courts, neither anyone nor any court has identified
an issue of the slightest arguable merit. Hughes will be granted
an opportunity to file an out-of-time direct appeal of his
conviction, competent appellate counsel will file an Anders brief
in Mississippi state court, a habeas petition will be filed in
federal district court, and after the passage of much time and
expense, our court will be placed in an almost identical
situation as we are today--considering the merits of an appeal
that is meritless. However, because our court is bound by the
Supreme Court’s holdings in Penson and Anders, I concur in this
exercise.