In the Matter of the Application for a Writ of Habeas Corpus for Larry C. High v. B. J. Rhay, Superintendent, Washington State Penitentiary , 519 F.2d 109 ( 1975 )

OPINION

LUMBARD, Circuit Judge:

Larry C. High, who is presently serving a sentence of twenty years in a Washington state prison following his convictions in August 1971 for rape, sodomy, and assault in the second degree, appeals from an order of the district court for the Western District of Washington, Sharp, J., denying his petition for a writ of habeas corpus.

After hearing argument on November 14, 1974, this court, on February 4, 1975, affirmed the order of the district court, with one judge dissenting. Thereafter, High petitioned for re-hearing and upon reconsideration this court is of the opinion that the petition should be granted and that the order of the district court should be reversed. Accordingly the opinion of February 4, 1975 is vacated.

We find that High has not been accorded due process and equal protection of the laws, in view of the state’s failure to see that on his criminal appeal High had legal representation which complied with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and accordingly, we reverse.

I.

High was tried in August 1971‘ in the Superior Court of Kitsap County, Washington, and was represented by retained counsel. The trial record discloses sharp issues of fact in the testimony of the defendant and the testimony of the complainant who alleged that on April 13, 1971, High forced her to commit sodomy and then raped her. The case was tried to a judge, without a jury, and his finding of guilt delivered from the bench at the conclusion of the trial discusses in some detail the discrepancies in the state’s case and in the testimony of the defendant.

By the time of his appeal from this conviction, High was indigent, and James Munro, Esq., was assigned by the trial (Superior) court to represent him. On January 17, 1972, Munro filed a four-page “Brief of Appellant,” which is set forth in full below.¹ In this brief counsel did not make even a minimal statement of the facts which were relevant to the appeal. The single “Assignment of Error” was that the trial court erred in finding the defendant guilty. In a three-sentence, eighty-five-word section entitled “Argument of Counsel,” the court was simply invited to review the transcript to determine whether the evidence established that High was guilty beyond a reasonable doubt. Munro also listed in his “Statement of the Case” seven additional claims of error which High had urged him to make. He stated that he had given these issues “due consideration,” but he did not include them in the section entitled “Assignment of Error.” After submitting this brief, Munro waived oral argument.

High was not satisfied with this brief and moved to have Munro discharged and new counsel appointed. At no time did Munro himself seek to withdraw. The Washington Court of Appeals denied High’s motion. High then filed his own hand-written, forty-page supplemental brief, as well as a reply brief in response to the state’s brief. The Washington Court of Appeals, in an eight-page unpublished opinion, affirmed High’s conviction. The court reviewed the transcript and found the evidence sufficient to sustain the conviction. It also specifically addressed High’s other arguments which had- been noted by Munro and argued by High in his own brief. Following this decision, High’s pro se petition for rehearing was denied, and the Washington Supreme Court denied a pro se petition for review. Subsequently High brought a state petition for a writ of habeas corpus, which was also denied.

Having exhausted state remedies, High brought the present habeas corpus petition in federal court, alleging primarily that he had inadequate legal representation at trial and on appeal.² The district court, having reviewed the trial transcript, concluded that High was ably represented at trial. With respect to High’s representation on appeal, the district court stated that the constitutional standards set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), are reduced if the appeal presents no substantial constitutional question. It found that the brief filed by Munro was not so ineffective as to violate Anders or to make the appeal a farce or mockery of justice. This appeal followed, with appellant being represented by the Legal Services Center of Seattle.

II.

The sharp conflict between the testimony of the defendant and the complaining witness, coupled with the numerous discrepancies in the state’s case, forms at least the basis for a non-frivolous argument that the evidence did not establish guilt beyond a reasonable doubt. There is no indication that counsel considered such an argument frivolous. By making insufficiency of the evidence his sole assignment of error, Munro distinguished it from the seven other issues High sought to have him argue.

Appointed counsel, in such a situation, has a duty under Anders not only to raise such a non-frivolous argument, but to advocate it conscientiously on appeal. Anders v. California, 386 U.S. at 744—45, 87 S.Ct. 1396; see ABA Standards, Criminal Appeals § 3.2(b)(ii) (1970) and commentary thereto. The very nature of the case required the consideration of much of the often conflicting evidence in order to decide whether the evidence could support a finding of guilty beyond a reasonable doubt. Moreover, even if Munro had thought that the argument and the appeal were frivolous, he still would have had a duty, under Anders, to advise the court of anything in the record which might arguably support the appeal. 386 U.S. at 744-45, 87 S.Ct. 1396; see Vanhook v. Craven, 419 F.2d 1295, 1296 (9th Cir. 1969). This guards against any temptation on the part of appointed counsel to discharge an obligation to the client in a summary fashion, see Nickols v. Gagnon, 454 F.2d 467, 470 (7th Cir. 1971), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 336 (1972), and enables the court to review the record itself more effectively, see Anders v. California, 386 U.S. at 745, 87 S.Ct. 1396.

Here Munro, in three sentences, merely stated the simple question of the sufficiency of the evidence and invited the court to review the entire transcript itself. On these generalities he ■ submitted the case to the court without oral argument. Counsel failed to make even a minimal statement of the facts which are relevant to the issues on appeal. The “brief” is worthless. It could not have required more than five minutes to draft. No client in his right mind would pay one cent for such a performance. It is difficult to understand how the Washington Court of Appeals could accept such a brief and thereafter deny High’s motion to relieve Munro and to designate new counsel. There is no indication that that court felt that High’s appeal was wholly frivolous. And even under Anders a court hearing the first appeal from a criminal conviction should still have before it a “brief” by counsel referring to anything in the record which might arguably support the appeal before making a determination that that appeal is wholly frivolous. High’s own pro se briefs were no adequate substitute for the advocacy of experienced counsel. In accepting Munro’s “brief” and in denying High’s motion to have Munro discharged and new counsel appointed, the state court failed to follow the clear mandate of Anders.

The district court, which denied High’s petition for a writ of habeas corpus, erred when it stated that the requirements of Anders are lower where there is no substantial constitutional question involved in an appeal. Whether issues to be raised by counsel are of constitutional dimension is irrelevant for the purposes of Anders, which was concerned with the adequacy of a defendant’s representation in raising whatever arguments can be made on appeal for either reversal or a new trial.

It is true that the Washington Court of Appeals has given careful and thorough consideration to the very points which assigned counsel could make on a second appeal from High’s conviction. It is also true that the probabilities are that any review of the record, in light of all the arguments which diligent and experienced counsel may make for High,' will still result in affirmance of the conviction. Nevertheless, High has a right to have an advocate present his case to the Washington Court of Appeals.³ Under our adversary system, it has become a well-established principle that there is no substitute for counsel who acts as an advocate and who makes the best arguments he can on the facts and the law. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The appellant may not be deprived of the benefit of such appellate representation because his court-appointed counsel fails to perform his clear duty.

The decision of the district court is reversed and the case remanded to the district court, which is directed to grant the writ of habeas corpus unless within a reasonable time the state assigns new counsel and the appeal from High’s 1971 convictions is heard and considered again.

1 . BRIEF OF APPELLANT

STATEMENT OF THE CASE

“The Defendant larry [sic] C. High, who was represented by retained counsel William H. Fraser of Bremerton, Washington, an experienced trial lawyer and former Deputy Prosecuting Attorney of Kitsap County, was charged in the Third Amended Information Tr. 1, waived his trial by jury Tr. 3, and was tried and found guilty by the Honorable Jay W. Hamilton, Judge of the Superior Court of Kit-sap County, Tr. 4 and Tr. 8. After being found guilty, he desired to prosecute an Appeal and being without funds an order was entered authorizing the expenditure of public funds for the cost of Appeal Tr. 11. On February the 1st, 1971 the present counsel for Mr. High took over all of the public defense of the felony cases in Kitsap County on an experimental basis. Upon being informed that he had been assigned to the Appeal of Larry C. High, counsel obtained the files from Mr. Fraser and contracted Mr. High who was at that time incarcerated in the Washington State Penitentiary at Walla Walla. A considerable amount of correspondence ensued between appointed counsel, Larry C. High and Judge Jay W. Hamilton. From this correspondence it was difficult to determine from day to day if Mr. High desired to be represented by the appointed counsel, or if he was going to obtain counsel of his own choice. Finally, in a letter written on December 26, 1971, Mr. High informed counsel that he desired to have him proceed in this matter. Counsel for the appellant has carefully read the Statement of Facts in this case and has discussed the matter of this Appeal with Mr. William H. Fraser. Mr. High has also indicated to counsel his ideas of where the Court erred in this matter. Mr. High’s list of the Court’s errors may be summarized as follows:

1. He was not advised of this [sic] rights.

2. He was never put in a line-up.

3. That the complaining witness was mistaken in her identification of him as the one who committed the crimes.

4. That the complaining witness testified that part of her statement had been given to her by one of the detectives.

5. That there is a discrepancy between the testimony of Detective Dean and the complaining witness.

6. That the presiding Judge was prejudiced against him because the Judge knew the complaining witness’ father and because of the appellant’s knowledge of corruption in the Prosecutor’s office and the Sheriff’s department.

7. That the closing argument of the Prosecuting Attorney was prejudicial as it indicated to the Court that the Prosecuting Attorney’s office had had no contact with the defendant since 1966, whereas in fact on the 10th day of October, 1970, the Prosecutor’s office had filed five (5) charges against him which were later dismissed in February of 1971 when the prosecuting witness changed her mind and would not testify against him.

Due consideration has been given to these matters by the appellant’s counsel.

ASSIGNMENTS OF ERROR

“That the lower Court erred in finding the defendant guilty.

ARGUMENT OF COUNSEL

“The sole question before the Court at this time is whether or not there was sufficient evidence as to the guilt of Larry C. High, which when considered with the testimony of the defendant and his witnesses could convince a reasonable mind beyond a reasonable doubt that the defendant was guilty of the crimes charged.

“The only answer to this question is for the Court to review the Transcript of this case and the Statement of Facts. The matter is therefore respectfully submitted to the Court.

Attorney for Appellant”

(Transcript 17-20.)

2 . High also charged that the state had knowingly used false evidence and that there existed numerous errors at trial which amounted to a deprivation of due process. These claims were also considered and rejected by the district court.

3 . Certainly High’s chances of success on the subsequent appeal are as great or greater than were Anders after his Supreme Court victory. See Anders v. California, 386 U.S. 738, 746 n.*, 87 S.Ct. 1396 (Stewart, J., dissenting). There the majority noted as evidence of possible prejudice that neither counsel nor Anders had assigned as error the fact that both the trial judge and the prosecutor had commented on the defendant’s failure to testify. However Anders’ state court appeal was decided in 1959, six years before Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). See Anders v. California, 386 U.S. at 746 n.*, 87 S.Ct. 1396 (Stewart, J., dissenting). Even adequate counsel in 1959 might not have raised a question about seemingly settled law which permitted states to allow their prosecutors to comment on a defendant’s failure to take the stand.