Petitioner, allegedly of Mexican descent with a limited
knowledge of English, was convicted on several narcotics charges.
Immediately after petitioner was sentenced in June, 1963, his
retained counsel indicated orally that petitioner wished to appeal
in forma pauperis. The trial judge, who did not advise
petitioner of his right of appeal, told petitioner's counsel that
all motions had to be in writing, and adjourned court. No written
motions were filed, and petitioner's counsel did not submit a
written notice of appeal within the 10-day limit. When petitioner
later tried to file such a notice himself, the trial judge ruled
that the expiration of the appeal period deprived the court of
jurisdiction. Petitioner sought relief in the Court of Appeals,
alleging that he told counsel to perfect an appeal, but that
counsel had failed to do so. That court denied petitioner's motion
for lack of jurisdiction, and also refused habeas corpus.
Petitioner thereafter brought this action for post-conviction
relief under 28 U.S.C. § 2255. The District Court denied relief,
and the Court of Appeals affirmed, both courts relying on a Ninth
Circuit rule requiring a defendant who claims that he has been
deprived of his right of appeal to disclose the errors to be
claimed on appeal and to show that denial of an appeal had caused
prejudice.
Held:
1. The Ninth Circuit rule is invalid, since (1) it makes an
indigent defendant (who must prepare his petition under § 2255
without assistance of counsel) face "the danger of conviction
because he does not know how to establish his innocence" and (2) it
requires the sentencing court to screen out supposedly
unmeritorious appeals in summary fashion, a procedure rejected in
Coppedge v. United States, 369 U.
S. 438. P.
395 U. S.
330.
2. Under the circumstances of this case, including the length of
time since petitioner was sentenced, the trial judge's failure to
advise him of his right to appeal, and failure to inquire into the
circumstances surrounding petitioner's attempt to make an
in
forma pauperis motion, no hearing is required, and the case is
remanded to the District Court, where petitioner should be
resentenced so that he may perfect his appeal as prescribed by the
applicable rules. Pp.
395 U. S.
331-332.
387 F.2d 117, reversed and remanded.
Page 395 U. S. 328
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Petitioner brought this suit for post-conviction relief under 28
U.S.C. § 2255, alleging that, after his conviction on several
narcotics charges, he had been improperly denied his right to
appeal. Petitioner was sentenced to 11 concurrent 20-year terms on
June 20, 1963. Immediately after the sentencing, petitioner's
retained counsel attempted to make a motion requesting leave for
petitioner to proceed
in forma pauperis. The trial judge
cut petitioner's counsel off, saying that all motions had to be in
writing. Without making any further inquiry, he adjourned the
court. No written motions were ever filed, and petitioner's counsel
did not submit a notice of appeal within the 10-day period
specified by the applicable rule. [
Footnote 1] On August 7, 1963, after the time had expired,
petitioner attempted to file a notice of appeal himself. He
declared that an oral notice had been given at trial. The trial
judge ruled that the expiration of the appeal period deprived the
court of jurisdiction. Petitioner then sought relief in the Court
of Appeals for the Ninth Circuit. He alleged that he had told his
counsel to perfect an appeal, but that counsel had failed to do so.
The Ninth Circuit denied petitioner's motion for lack of
jurisdiction, citing
United States v. Robinson,
361 U. S. 220
(1960). It also refused habeas corpus.
Page 395 U. S. 329
This action was commenced on February 15, 1966. Petitioner
alleged that he was of Mexican descent and that his knowledge of
English was limited. He further contended that his retained counsel
had fraudulently deprived him of his right to appeal. He asked that
his conviction be set aside and that he be resentenced so that he
could properly take an appeal. The District Court for the Northern
District of California denied petitioner's application, and the
Ninth Circuit affirmed. 387 F.2d 117 (1967). Both courts relied on
a Ninth Circuit rule requiring applicants in petitioner's position
to disclose what errors they would raise on appeal and to
demonstrate that denial of an appeal had caused prejudice. We
granted certiorari to resolve a conflict among the circuits about
the propriety of such a requirement. [
Footnote 2] 393 U.S. 951 (1968). We reverse.
I
As this Court has noted before, "[p]resent federal law has made
an appeal from a District Court's judgment of conviction in a
criminal case what is, in effect, a matter
Page 395 U. S. 330
of right."
Coppedge v. United States, 369 U.
S. 438,
369 U. S. 441
(1962). The Ninth Circuit seems to require an applicant under 28
U.S.C. § 2255 to show more than a simple deprivation of this right
before relief can be accorded. It also requires him to show some
likelihood of success on appeal; if the applicant is unlikely to
succeed, the Ninth Circuit would characterize any denial of the
right to appeal as a species of harmless error. We cannot subscribe
to this approach.
Applicants for relief under § 2255 must, if indigent, prepare
their petitions without the assistance of counsel.
See Johnson
v. Avery, 393 U. S. 483,
393 U. S.
487-488 (1969). Those whose education has been limited
and those, like petitioner, who lack facility in the English
language might have grave difficulty in making even a summary
statement of points to be raised on appeal. Moreover, they may not
even be aware of errors which occurred at trial. They would thus be
deprived of their only chance to take an appeal even though they
have never had the assistance of counsel in preparing one. Like the
approach rejected long ago in
Powell v. Alabama,
287 U. S. 45,
287 U. S. 69
(1932), the Ninth Circuit's requirement makes an indigent defendant
face "the danger of conviction because he does not know how to
establish his innocence." Moreover, the Ninth Circuit rule would
require the sentencing court to screen out supposedly unmeritorious
appeals in ways this Court rejected in
Coppedge. Those
whose right to appeal has been frustrated should be treated exactly
like any other appellants; they should not be given an additional
hurdle to clear just because their rights were violated at some
earlier stage in the proceedings. Accordingly, we hold that the
courts below erred in rejecting petitioner's application for relief
because of his failure to specify the points he would raise were
his right to appeal reinstated.
Page 395 U. S. 331
The Government, while not arguing that the courts below properly
denied relief on the pleadings, urges us to remand this case for a
truncated factual hearing. Drawing upon this Court's recognition in
Machibroda v. United States, 368 U.
S. 487,
368 U. S. 495
(1962), that the hearing requirement of § 2255 "does not strip the
district courts of all discretion to exercise their common sense,"
the Government suggests that the District Court be instructed to
obtain an affidavit from petitioner's trial attorney explaining why
no notice of appeal was filed. This explanation, together with
petitioner's allegations, would be used to judge the propriety of a
hearing.
This issue was not present in this case when certiorari was
granted, and we do not think it is present now. For we think it
"just under the circumstances," 28 U.S.C. § 2106, for us to dispose
of petitioner's arguments finally at this stage. Six years have now
elapsed since petitioner was sentenced, and we do not see how
further delay and further prolonged proceedings would serve the
cause of justice. Moreover, it appears from the trial transcript in
this case that the trial judge erroneously failed to advise
petitioner of his right to appeal. At the time of trial, Fed.Rule
Crim.Proc. 37(a)(2) required the sentencing judge to inform
unrepresented defendants of their right to appeal; the clerk, upon
request, was required to file a notice of appeal for the defendant.
[
Footnote 3] Counsel's attempt
to
Page 395 U. S. 332
obtain leave for petitioner to proceed
in forma
pauperis should have put the trial judge on notice that
petitioner would be unrepresented in the future. Moreover, unless
an appeal was contemplated, there would be no reason to make such a
motion. As the trial judge should have recognized, petitioner was
therefore precisely the kind of defendant who needed the protection
afforded by the rule. Had he known that the clerk would file a
notice of appeal for him, he could easily have avoided the
difficulties he has faced. At the very least, the trial judge
should have inquired into the circumstances surrounding the attempt
to make the
in forma pauperis motion. His failure to do so
effectively deprived petitioner of his right to appeal. Since this
deprivation appears on the record before us, we see no need for any
factual determinations on remand.
Cf. United States v.
Smith, 387 F.2d 268 (C.A. 6th Cir.1967).
The judgment is reversed, and the case is remanded to the
District Court where petitioner should be resentenced so that he
may perfect an appeal in the manner prescribed by the applicable
rules.
It is so ordered.
[
Footnote 1]
Fed.Rule Crim.Proc. 37(a), now Fed.Rule App.Proc. 4(b).
[
Footnote 2]
The Ninth Circuit rule originated in two 1964 decisions,
Wilson v. United States, 338 F.2d 54, and
Miller v.
United States, 339 F.2d 581.
Cf. McGarry v. Fogliani,
370 F.2d 42 (C.A. 9th Cir.1966). The First Circuit has adopted an
intermediate position; the defendant is not required to show plain
reversible error in his application, but the Government may defeat
relief by showing that an appeal would be futile.
Desmond v.
United States, 333 F.2d 378 (1964). Both petitioner and the
Government attempt to find support in the position of the Tenth
Circuit.
Hannigan v. United States, 341 F.2d 587 (1965).
The Fifth, Sixth, Seventh, Eighth, and District of Columbia
Circuits do not require any showing about the issues to be raised
on appeal.
Camp v. United States, 352 F.2d 800 (C.A. 5th
Cir.1965);
United States v. Smith, 387 F.2d 268 (C.A. 6th
Cir.1967);
Calland v. United States, 323 F.2d 405 (C.A.
7th Cir.1963);
Williams v. United States, 402 F.2d 548
(C.A. 8th Cir.1968);
Dillane v. United States, 121
U.S.App.D.C. 354, 350 F.2d 732 (1965).
[
Footnote 3]
Rule 37(a)(2) provided:
"When a court after trial imposes sentence upon a defendant not
represented by counsel, the defendant shall be advised of his right
to appeal and if he so requests, the clerk shall prepare and file
forthwith a notice of appeal on behalf of the defendant."
This provision has since been transferred to Rule 32(a)(2). It
now applies to defendants going to trial on a plea of not guilty,
whether or not they are represented by counsel. The problem of
determining whether to give notice to a person represented at
trial, but who may not be represented on appeal, will therefore not
recur.
MR. JUSTICE HARLAN, concurring in part and dissenting in
part.
I agree with Part I of the Court's opinion, but cannot subscribe
to Part II, in which the Court reinstates petitioner's right to
appeal without further proceedings below. In taking this course, I
think the Court has been too insensitive to what, on this record,
is due the trial judge, petitioner's trial counsel, and the orderly
administration of the criminal process.
In my opinion, this record does not show that petitioner was
wrongfully denied an opportunity to appeal. It appears from the
record that, immediately following petitioner's sentencing, his
lawyer indicated orally that
Page 395 U. S. 333
petitioner wished to appeal
in forma pauperis, and that
the judge informed the lawyer that "all motions" had to be made in
writing. Thereafter no written notice of appeal was filed within
the 10-day limit. Petitioner further alleges that he told his
counsel to perfect an appeal, and that counsel neglected to do so,
but those allegations have never been tested by the adversary
process.
The Court undertakes to justify its decision not to require a
hearing and findings on this score by characterizing as "error" the
sentencing judge's failure "to advise petitioner of his right to
appeal," as then supposedly required by Fed.Rule Crim.Proc.
37(a)(2), and by concluding that it is "just under the
circumstances," 28 U.S.C. § 2106, to dispose of the case at this
level.
See ante at
395 U. S.
331-332.
Although I share the Court's concern that petitioner receive
promptly all relief which is legally due him, I am unable to accept
either this attribution of "error" to the trial judge or this
bypassing of established methods for determining the truth of
factual allegations. At the time petitioner was sentenced, Rule
37(a)(2) required that a sentencing judge advise only "a defendant
not represented by counsel" of his right to appeal.
[
Footnote 2/1] (Emphasis supplied.)
In this instance, petitioner was represented by retained counsel
both at trial and at sentencing. The excerpts from the trial
transcript upon which the Court relies contain nothing at all to
rebut the natural inference, apparently drawn by the sentencing
judge, that petitioner's counsel would continue to represent him at
least for the purpose of filing a notice of appeal. Indeed,
Page 395 U. S. 334
petitioner's own statement of the facts reveals that this
inference was wholly justified, for petitioner asserts that, after
his sentencing, "his counsel advised both him and his wife that he
would arrange for their appeals." [
Footnote 2/2] Thus, even if it is assumed that "the
trial judge should have inquired into the circumstances surrounding
the attempt to make the
in forma pauperis motion,"
ante at
395 U. S. 332,
the judge's omission was surely, at most, harmless error.
I would therefore remand the case to the District Court, so that
it may be determined whether petitioner, in fact, did instruct his
attorney to perfect an appeal and whether the attorney, in fact,
neglected to do so. This course seems to me to be required both in
the interest of orderly procedure and in fairness to petitioner's
trial attorney.
Furthermore, as suggested by the Government, I would permit the
District Court discretion to begin by obtaining an affidavit from
petitioner's attorney in response to petitioner's allegations. Who
knows whether the attorney may not have in his possession
documentary evidence conclusively showing the allegations to be
unfounded? Or who knows whether the attorney may not wish to
concede the accuracy of the allegations? In either case, the
affidavit procedure might obviate the necessity for a full-blown
hearing. If the attorney has no documentary evidence, and if his
affidavit reveals a factual controversy, then, of course, a hearing
would be required. Such a procedure entirely fits the language of
28 U.S.C. § 2265 and this Court's statement in
Machibroda v.
United States, 368 U. S. 487,
368 U. S. 495
(1962), that § 2255 "does not strip the district courts of all
discretion to exercise their common sense."
[
Footnote 2/1]
This provision was subsequently amended to require that the
judge so advise all defendants, whether or not represented by
counsel.
See ante at
395 U. S. 331,
n. 3.
See also Peoples v. United States, 337 F.2d 91
(1964);
Calland v. United States, 323 F.2d 405 (1963);
Boruff v. United States, 310 F.2d 918 (1962).
[
Footnote 2/2]
Brief for Petitioner 6.