Nearly two years after his conviction of a federal crime, from
which he took no appeal, respondent,
pro se, filed a
complaint for declaratory and injunctive relief, in which he
asserted that he intended to seek vacation of his sentence pursuant
to 28 U.S.C. § 2255; that he was unable to afford a transcript;
that without one he could not frame his arguments for effective
review; that a transcript would show that he had not been afforded
effective assistance of counsel; and that there was insufficient
evidence to support the guilty verdict. The District Court, after
granting respondent leave to proceed
in forma pauperis,
appointing counsel, and holding a hearing, denied relief. The Court
of Appeals reversed, holding that respondent was entitled to a
transcript in order to assist him in preparing a motion under §
2255. The court concluded that 28 U.S.C. § 753(f), which provides
for a free transcript for indigent prisoners asserting a claim
under § 2255 if the trial judge certifies that the asserted claim
is "not frivolous" and that the transcript is "needed to decide the
issue," does not prohibit courts from requiring the government to
supply an indigent prisoner with a free transcript before he files
a § 2255 motion. By so ruling the court felt that it was
unnecessary to hold § 753(f) unconstitutional.
Held: The judgment is reversed. Pp.
426 U. S.
320-329;
426 U. S.
329-330.
511 F.2d 1116, reversed.
MR. JUSTICE REHNQUIST, joined by MR. CHIEF JUSTICE BURGER MR.
JUSTICE STEWART, and MR. JUSTICE POWELL, concluded:
1. Section 753(f) does not violate Art. I, § 9, cl. 2, by
constituting a suspension of the writ of habeas corpus. The right
to a free transcript is not a necessary concomitant of the writ,
which operated until 1944 with no provision at all for free
transcripts for indigents. If Congress thus could have limited the
writ directly without "suspending" it, Congress may do so
indirectly. Pp.
426 U. S.
322-323.
Page 426 U. S. 318
2. Nor does § 753(f) violate the Due Process Clause of the Fifth
Amendment and respondent's right to "equal protection," since
respondent, to whom the transcript was available had he chosen to
appeal his conviction, and remained available on the conditions set
forth in § 753, had an adequate opportunity to attack his
conviction. Pp.
426 U. S.
323-328.
(a) The Due Process Clause does not establish a right of appeal,
and § 753(f)'s conditions are not "so arbitrary and unreasonable .
. . as to require their invalidation,"
Douglas v.
California, 372 U. S. 353,
372 U. S. 365
(Harlan, J., dissenting). Pp.
426 U. S.
323-324.
(b) Though those statutory conditions place an indigent in a
position somewhat less advantageous than that of a person of means,
the equal protection component of the Fifth Amendment's Due Process
Clause does not guarantee absolute equality, the conditions of §
753(f) providing an adequate access to procedures for review of the
conviction of an indigent, who, like respondent, chose to forgo his
opportunity for a direct appeal with its attendant free transcript.
Pp.
426 U. S.
324-328.
MR. JUSTICE BLACKMUN concluded that § 753(f) afforded respondent
a fair and adequate opportunity to present his claims effectively
in this collateral proceeding, and that it is not necessary to
consider the constitutional significance of what respondent might
have done at the time he could have directly appealed his
conviction. Pp.
426 U. S.
329-330.
REHNQUIST, J., announced the judgment of the Court and delivered
an opinion, in which BURGER, C.J., and STEWART and POWELL, JJ.,
joined. BLACKMUN, J., filed an opinion concurring in the judgment,
post, p.
426 U. S. 329.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
426 U. S. 330.
STEVENS, J., filed a dissenting opinion, in which BRENNAN, WHITE,
and MARSHALL, JJ., joined,
post, p.
426 U. S.
334.
Page 426 U. S. 319
MR. JUSTICE REHNQUIST announced the judgment of the Court in an
opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR.
JUSTICE POWELL join.
This case presents the question of whether the restrictions
imposed by 28 U.S.C. § 753 on the availability to an indigent
prisoner of a free trial transcript to aid him in preparing a
petition for collateral relief are consistent with the Fifth
Amendment to the Constitution. The Court of Appeals for the Ninth
Circuit, in contrast to every other Court of Appeals which has
ruled on the issue, held that such prisoners have an absolute right
to a transcript. We reverse.
I
Respondent was convicted of uttering forged currency in
violation of 18 U.S.C. § 472 after a jury trial in the United
States District Court for the Western District of Washington. On
June 3, 1970, he was sentenced to 10 years' imprisonment. He did
not appeal. Nearly two years later, respondent, acting
pro
se, filed in the District Court a paper designated "Motion for
Transcript in Forma Pauperis." This was returned to respondent with
the advice that he first had to file a motion pursuant to 28 U.S.C.
§ 2255 before the court could act on his request for a
transcript.
Respondent then filed a "complaint for Declaratory Judgment and
Injunctive Relief" in which he alleged that he "intends to move
this Court for vacation of his sentence pursuant to 28 U.S.C. §
2255." He asserted that he was unable to afford a transcript, that
a transcript would show that he had not been afforded effective
assistance of counsel, and that there was insufficient evidence to
support the verdict of guilty. The complaint further alleged that,
without a transcript, respondent would be "unable to frame his
arguments for fair and
Page 426 U. S. 320
effective review." The complaint did not elaborate upon
respondent's two asserted grounds for relief.
The District Court treated this pleading as a motion under 28
U.S.C. § 2255, granted respondent leave to proceed
in forma
pauperis, appointed counsel, and held a hearing. After the
hearing, the court dismissed the complaint for failure to state a
claim upon which relief could be granted. Respondent appealed, and
a divided panel of the Court of Appeals reversed, 511 F.2d 1116
(1974), holding that respondent was entitled to a transcript "in
order to assist him in the preparation of a post-conviction motion
under 28 U.S.C. [§ ] 2255."
Id. at 1124.
II
Congress has expressly addressed the question of furnishing
transcripts at public expense in 28 U.S.C. § 753(f), which provides
in pertinent part:
"Fees for transcripts furnished in criminal proceedings to
persons proceeding under the Criminal Justice Act (18 U.S.C. [§]
3006A), or in habeas corpus proceedings to persons allowed to sue,
defend, or appeal in forma pauperis, shall be paid by the United
States out of moneys appropriated for those purposes. Fees for
transcripts furnished in proceedings brought under section 2255 of
this title to persons permitted to sue or appeal
in forma
pauperis shall be paid by the United States out of money
appropriated for that purpose if the trial judge or a circuit judge
certifies that the suit or appeal is not frivolous and that the
transcript is needed to decide the issue presented by the suit or
appeal. . . ."
The statute thus provides for a free transcript for indigent
prisoners asserting a claim under § 2255 if a judge certifies that
the asserted claim is "not frivolous"
Page 426 U. S. 321
and that the transcript is "needed to decide the issue." The
District Court, by its conclusion that respondent failed to state a
claim upon which relief could be granted, implicitly decided one of
these two issues against respondent.
The Court of Appeals held that it was not necessary to declare §
753(f) unconstitutional in order to grant respondent relief.
Rather, the court held that the section
"does not prohibit courts from . . . requiring the government to
supply an imprisoned indigent with a free transcript
before he files a § 2255 motion. Such a court order would
simply fill a constitutional deficit not addressed by the
statute."
(Emphasis added.) 511 F.2d at 1119-1120.
This is a novel approach to statutory construction. T he
established rule is that the expenditure of public funds is proper
only when authorized by Congress, not that public funds may be
expended unless prohibited by Congress.
Reeside v.
Walker, 11 How. 272,
52 U. S. 291
(1851). This particular statute contains a limited grant of
authority to the courts to authorize the expenditure of public
funds for furnishing transcripts to plaintiffs in § 2255 actions.
The fact that the statute does not "prohibit" the furnishing of
free transcripts in other circumstances is of little significance,
since most such statutes speak only in terms of granting authority
for the expenditure of federal funds. Where Congress has addressed
the subject, as it has here, and authorized expenditures where a
condition is met, the clear implication is that, where the
condition is not met, the expenditure is not authorized.
Botany
Mills v. United States, 278 U. S. 282,
278 U. S. 289
(1929);
Passenger Corp. v. Passengers Assn., 414 U.
S. 453,
414 U. S. 458
(1974). [
Footnote 1]
Page 426 U. S. 322
It is true, as respondent observes, that the statute, as
currently written, distinguishes between habeas corpus petitioners
and parties proceeding under § 2255 in that only the latter must
make a showing of need and nonfrivolousness in order to obtain a
free transcript. Thus, while it is still true that the "remedy"
afforded by § 2255 is "exactly commensurate with that which had
previously been available by habeas corpus . . . ,"
Hill v.
United States, 368 U. S. 424,
368 U. S. 427
(1962), the right to pursue that remedy with a free transcript has
now been somewhat limited by Congress. [
Footnote 2] Respondent argues that this constitutes a
suspension of the writ of habeas corpus in violation of Art. I, §
9, cl. 2, of the Constitution.
This argument presupposes,
inter alia, that a right to
a free transcript is a necessary concomitant of the writ which the
Founders declared could not be suspended. This is obviously not the
case. The writ of habeas corpus operated until 1944 with no
provision for free transcripts
Page 426 U. S. 323
for indigents.
See 58 Stat. 6, 28 U.S.C. § 9a (1940
ed., Supp. IV). Congress, when in that year it authorized free
transcripts for the first time, could certainly have limited the
authorization to nonfrivolous cases where a need had been shown. If
Congress could have thus limited the writ directly without
"suspending" it, it follows that it may do so indirectly. The only
possible objection is a Fifth Amendment due process-equal
protection claim, to which we now turn.
III
The Court of Appeals did not technically decide this
constitutional issue, since it thought it had discovered a
lacuna in the statute, but its reference to a
"constitutional deficit" suggests its view on this question.
Respondent urges that, if the statute is read as we now read it, it
violates both the Due Process Clause of the Fifth Amendment and his
right to "equal protection."
The Due Process Clause of the Fifth Amendment does not establish
any right to an appeal,
see Griffin v. Illinois,
351 U. S. 12,
351 U. S. 18
(1956) (plurality opinion), and certainly does not establish any
right to collaterally attack a final judgment of conviction.
[
Footnote 3] In this case,
respondent was granted a statutory right of appeal without payment
of costs if he were an indigent, and, had he pursued that right, §
753(f) would have authorized the use of public funds to furnish him
a transcript of the trial proceedings without any further showing
on his part. Having forgone this right, which existed by force of
statute only, he may not, several years later, successfully assert
a due process right to review of his conviction, and thereby obtain
a free transcript on his own terms as an ancillary
constitutional
Page 426 U. S. 324
benefit. The conditions which Congress had imposed on obtaining
such a transcript in § 753(f) are not "so arbitrary and
unreasonable . . . as to require their invalidation,"
Douglas
v. California, 372 U. S. 353,
372 U. S. 365
(1963) (Harlan, J., dissenting); rather they "comport with fair
procedure,"
id. at 3
372 U. S. 57
(Court's opinion).
Although the statutory conditions established in § 753(f) with
respect to furnishing a free transcript to movants in § 2255
proceedings are therefore consistent with the due process
requirements of the Fifth Amendment, it is undoubtedly true that
they place an indigent in a somewhat less advantageous position
than a person of means. But neither the Equal Protection Clause of
the Fourteenth Amendment nor the counterpart equal protection
requirement embodied in the Fifth Amendment, guarantees "absolute
equality or precisely equal advantages,"
San Antonio School
Dist. v. Rodriguez, 411 U. S. 1,
411 U. S. 24
(1973). In the context of a criminal proceeding, they require only
"an adequate opportunity to present [one's] claims fairly. . . ."
Ross v. Moffitt, 417 U. S. 600,
417 U. S. 616
(1974).
In
Douglas v. California, supra, the Court held that
the State must provide counsel for an indigent on his first appeal
as of right. But in
Ross v. Moffitt, supra, we declined to
extend that holding to a discretionary second appeal from an
intermediate appellate court to the Supreme Court of North
Carolina. We think the distinction between these two holdings of
the Court is of considerable assistance in resolving respondent's
equal protection claim. Respondent in this case had an opportunity
for direct appeal, and, had he chosen to pursue it, he would have
been furnished a free transcript of the trial proceedings. But,
having forgone that right, and instead some years later having
sought to obtain a free transcript in order to make the best case
he could in a
Page 426 U. S. 325
proceeding under § 2255, respondent stands in a different
position.
The Court has held that, when a State grants a right to
collateral review, it may not deny the right to an indigent simply
because of inability to pay the required filing fee,
Smith v.
Bennett, 365 U. S. 708
(1961). There is no such impediment here; respondent was permitted
to proceed
in forma pauperis in his § 2255 action. The
Court has also held that a State may not confide to the public
defender the final decision as to whether a transcript shall be
available to the criminal defendant who collaterally attacks his
conviction,
Lane v. Brown, 372 U.
S. 477 (1963). There the Court observed that the state
provision "confers upon a state officer outside the judicial system
power to take from an indigent all hope of any appeal at all."
Id. at
372 U. S.
485.
The congressional statute governing the furnishing of free
transcripts to plaintiffs in § 2255 actions has no such infirmity.
The decision as to the provisions of the transcript at public
expense is made initially by an official at the very heart of the
judicial system -- a district judge in the judicial district in
which the § 2255 plaintiff was tried. The district court has the
power to order a free transcript furnished if it finds that the
"suit . . . is not frivolous and that the transcript is needed to
decide the issue presented. . . ." 28 U.S.C. § 753(f).
We think that the formula devised by Congress satisfies the
equal protection component of the Fifth Amendment. Respondent chose
to forgo his opportunity for direct appeal with its attendant
unconditional free transcript. This choice affects his later equal
protection claim as well as his due process claim. Equal protection
does not require the Government to furnish to the indigent a
delayed duplicate of a right of appeal with attendant free
transcript which it offered in the first
Page 426 U. S. 326
instance, even though a criminal defendant of means might well
decide to purchase such a transcript in pursuit of relief under §
2255. The basic question is one of adequacy of respondent's access
to procedures for review of his conviction,
Ross v. Moffitt,
supra, and it must be decided in the light of avenues which
respondent chose not to follow, as well as those he now seeks to
widen. We think it enough at the collateral relief stage that
Congress has provided that the transcript be paid for by public
funds if one demonstrates to a district judge that his § 2255 claim
is not frivolous and that the transcript is needed to decide the
issue presented.
Respondent urged in oral argument that, if trial counsel had
done a poor job of representing a criminal defendant, such counsel
might well urge the defendant to forgo his right of appeal in order
to prevent a claim of ineffective assistance of counsel from being
raised on the appeal. It is certainly conceivable that such a state
of facts might exist, notwithstanding the fidelity to the interest
of their clients demonstrated repeatedly by the overwhelming
majority of the members of the legal profession. But § 753(f) does
not require that a § 2255 plaintiff must prove his claim in order
to obtain a transcript, but only that he convince the district
court that such claim is not frivolous. Had the District Court here
been confronted not with merely a conclusory allegation, but with
some factual allegations indicating a denial of respondent's Sixth
Amendment right to counsel, together with an additional explicit
assertion that trial counsel had urged respondent to forgo his
appeal, that court might have concluded that such a claim was not
frivolous, and further decided that a free transcript should be
furnished pursuant to § 753(f). [
Footnote 4]
Page 426 U. S. 327
But that is not our case. Respondent made only a naked
allegation of ineffective assistance of counsel. Since any
discussion he may have had with his trial counsel as to the
desirability of appeal would not normally appear in the transcript
of proceedings at trial, the furnishing of such transcript would
not have aided him in refreshing his recollection of such
discussions. The failure to flesh out this aspect of respondent's
claim of ineffective assistance of counsel, then, is not likely to
have been cured by a transcript.
We think this is an area of the law where the opinions of the
courts of appeals are entitled to particular weight, since they
represent not only expositions of federal and constitutional law,
but also expressions of essentially practical judgment on questions
which those courts must confront far more than we do. The fact
that, with the exception of the decision presently under review,
they have unanimously concluded that the conditions established by
§ 753(f) for the furnishing of a free transcript do not violate the
Fifth Amendment is significant. [
Footnote 5] A practical reason for their conclusion is
well expressed by Judge Haynsworth in
United States v.
Shoaf, 341 F.2d 832 (CA4 1964), in which he said for that
court:
"The usual grounds for successful collateral attacks upon
convictions arise out of occurrences outside
Page 426 U. S. 328
of the courtroom or of events in the courtroom of which the
defendant was aware and can recall without the need of having his
memory refreshed by reading a transcript. He may well have a need
of a transcript [to support his claim], but rarely, if ever, . . .
to become aware of the events or occurrences which constitute a
ground for collateral attack,"
Id. at 835. [
Footnote
6] We conclude that the fact that a transcript was available
had respondent chosen to appeal from his conviction, and remained
available on the conditions set forth in § 753 to an indigent
proceeding under § 2255, afforded respondent an adequate
opportunity to attack his conviction. To hold otherwise would be to
place the indigent defendant in a more favorable position than a
similarly situated prisoner of some, but not unlimited, means, who
presumably would make an evaluation much like that prescribed in §
753(f) before he spent his own funds for a transcript.
"[T]he fact that a particular service might be of benefit to an
indigent defendant does not mean that the service is
constitutionally required. The duty of the State under our cases is
not to duplicate the legal arsenal that may be privately retained
by a criminal defendant in a continuing effort to reverse his
conviction, but only to assure the indigent defendant an adequate
opportunity to present his claims fairly in the context of the
State's appellate process."
Ross v. Moffitt, 417 U.S. at
417 U. S.
616.
Page 426 U. S. 329
The judgment of the Court of Appeals for the Ninth Circuit
is
Reversed.
[
Footnote 1]
Our Brother STEVENS would construe the pertinent part of §
753(f) to "make transcripts available almost automatically in §
2255 proceedings . . . ,"
post at
426 U. S. 338.
We think such a construction would do violence to the intent of
Congress which clearly appears from the language of that section,
supra at
426 U. S. 320.
Congress did, in that section, make transcripts available
automatically on direct appeal, but, in the same section, limited
their availability in § 2255 motions to cases where the trial judge
certifies that the § 2255 suit is not frivolous, and that the
transcript is needed to decide the issue presented by the suit. Our
Brother STEVENS advances what may well be very sound policy reasons
for furnishing free transcripts as a matter of course to § 2255
plaintiffs, as well as to convicted defendants pursuing direct
appeals. But it is plain from a reading of § 753(f) that these
considerations have not yet commended themselves to Congress.
[
Footnote 2]
The difference is not as great as it might appear to be,
however, because habeas corpus petitioners who wish to proceed
in forma pauperis must still overcome a "nonfrivolous"
barrier under 28 U.S.C. § 1915.
E.g., Kitchens v.
Alderman, 376 F.2d 262 (CA5 1967);
Blair v.
California, 340 F.2d 741 (CA9 1965).
[
Footnote 3]
The constitutional treatment of habeas corpus, of course, is not
contained in the Due Process Clause, but in Art. I, § 9, cl. 2, of
the Constitution.
[
Footnote 4]
Since a § 2255 claim is usually presented to the trial judge, he
will likely have an independent recollection of counsel's
performance which may well lead him to conclude that a movant's
claim is nonfrivolous.
[
Footnote 5]
E.g., Ellis v. Maine, 448 F.2d 1325 (CA1 1971);
United States ex rel. Buford v. Henderson, 524 F.2d 147
(CA2 1975);
United States v. Shoaf, 341 F.2d 832 (CA4
1964);
United States v. Herrera, 474 F.2d 1049 (CA5 1973);
Hoover v. United States, 416 F.2d 431 (CA6 1969);
United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (CA9
1972) (habeas corpus);
Taylor v. United States, 238 F.2d
409 (CA9 1956) (§ 2255 motion);
Hines v. Baker, 422 F.2d
1002 (CA10 1970).
[
Footnote 6]
This opinion and other aspects of this question were thoroughly
discussed shortly after the 1965 amendment to § 753(f) in Blackmun,
Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus
Cases, 43 F.R.D. 343 (1967).
MR. JUSTICE BLACKMUN, concurring in the judgment.
I am in complete accord with what is said in n. 1 of the
plurality opinion,
ante at
426 U. S.
321-322, regarding MR. JUSTICE STEVENS dissent. It is
not this Court's function to rewrite 28 U.S.C. § 753(f) in order to
reflect -- as that dissent appears to me to urge -- what may be
regarded as sound policy for the administration of our criminal
justice system.
I write separately, however, to emphasize the narrowness of the
constitutional issue that is before us and the ease of its
resolution. The answer to this case lies, I think, in the fact that
respondent MacCollom has a current opportunity to present his
claims fairly, and we need not consider the constitutional
significance of what he might have done at the time a direct appeal
from his conviction could have been taken.
For me, the issue in this case is whether the Constitution
requires that a transcript be provided when an indigent makes no
showing, with any degree of particularity, that he requires the
transcript in order to make an effective collateral attack on his
conviction. The crucial inquiry, as the Court said in the analogous
Fourteenth Amendment context, is whether § 753(f) affords indigents
"an adequate opportunity to present their claims fairly within the
adversary system."
Ross v. Moffitt, 417 U.
S. 600,
417 U. S. 612
(1974).
Here, respondent was permitted to proceed
in forma
pauperis, and counsel was appointed for him. In order for him
to obtain a transcript of his trial, he was required to show only
that his claim was not frivolous and that there was a basis,
grounded on some articulable facts,
Page 426 U. S. 330
for believing that a transcript would assist him in his § 2255
proceeding. Clearly, there is no constitutional requirement that
the United States provide an indigent with a transcript when that
transcript is not necessary in order for him to prove his claim, or
when his claim is frivolous on its face. Nor does the Constitution
require that an indigent be furnished every possible legal tool, no
matter how speculative its value, and no matter how devoid of
assistance it may be, merely because a person of unlimited means
might choose to waste his resources in a quest of that kind.
The way was thus open for respondent to present his claim fairly
within the very bounds of § 753(f). One need go no further. I
therefore join the judgment reversing the Court of Appeals.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins,
dissenting.
I join my Brother STEVENS' dissent, but add this separate
dissent to record my disagreement with the plurality's view that
the Government's refusal to furnish an indigent defendant a free
trial transcript in a proceeding under 28 U.S.C. § 2255, upon
merely a showing of indigency, does not deny respondent equal
protection of the laws secured against the Federal Government, as
the plurality concedes, through the Due Process Clause of the Fifth
Amendment.
See Buckley v. Valeo, 424 U. S.
1,
424 U. S. 87
(1976);
Weinberger v. Wiesenfeld, 420 U.
S. 636,
420 U. S. 638
n. 2 (1975).
"[T]he central aim of our entire judicial system [is that] all
people charged with crime must, so far as the law is concerned,
'stand on an equality before the bar of justice in every American
court,'"
Griffin v. Illinois, 351 U. S. 12,
351 U. S. 17
(1956) (plurality opinion), for this is a "country dedicated to
affording equal justice to all and
Page 426 U. S. 331
special privileges to none in the administration of its criminal
law."
Id. at
351 U. S.
19.
"Our decisions for more than a decade now have made clear that
differences in access to the instruments needed to vindicate legal
rights, when based upon the financial situation of the defendant,
are repugnant to the Constitution."
Roberts v. LaVallee, 389 U. S. 40,
389 U. S. 42
(1967). Thus, in
Griffin, the Court held that "[d]estitute
defendants must be afforded as adequate appellate review as
defendants who have money enough to buy transcripts," 351 U.S. at
351 U. S. 19,
and that therefore the State must furnish the indigent defendant
with a free trial transcript for purposes of direct appeal.
The
Griffin principle of equality was not limited to
transcripts for purposes of direct appellate review. In
Smith
v. Bennett, 365 U. S. 708
(1961), the Court invalidated a filing fee for state habeas corpus
as applied to indigents. The invalidation was held to be required
by an earlier decision holding that a State could not require an
indigent to pay a filing fee before being allowed to appeal in one
of its courts.
Burns v. Ohio, 360 U.
S. 252 (1959). Later,
Lane v. Brown,
372 U. S. 477,
372 U. S. 484
(1963), held that "
Smith makes clear that the
Griffin principle also applies to state collateral
proceedings. . . ."
The
Griffin equality principle was next applied to
appeals from state habeas proceedings. In
Long v. District
Court of Iowa, 385 U. S. 192
(1966), the Court, stating that "having established a
post-conviction procedure, a State cannot condition its
availability to an indigent upon any financial consideration," held
that an indigent defendant must be furnished a free transcript of
his state habeas proceedings for purposes of appeal from a denial
of that relief.
Id. at
385 U. S. 194.
And in
Gardner v. California, 393 U.
S. 367 (1969), the Court went still further and required
the furnishing of a transcript of a habeas proceeding for the
purposes of a second such
Page 426 U. S. 332
proceeding. Thus, the plurality's opinion today that respondent
may be required to show more than indigency before being entitled
to his trial transcript for purposes of collateral review is a
plain departure from
Griffin and its progeny.
The denial in this case is particularly egregious, for one of
respondent's claims on the merits is that he was denied effective
assistance of counsel. Substantiation of such a claim is virtually
impossible without the aid of a trial transcript. Yet the plurality
denigrates respondent's claim as a "naked allegation."
Ante at
426 U. S. 327.
Essentially, therefore, he is denied a transcript for making an
unsubstantiated allegation, an allegation that obviously he cannot
establish without a transcript. [
Footnote 2/1]
It bears emphasis that where, as here, denial of equal
protection is the issue, it matters not, under our cases, that the
indigent had a fair opportunity to present a defense and have his
conviction reviewed on direct appeal. The unfairness born of
discrimination denying equal protection is as offensive to the
Constitution as any unfairness resulting from procedural
deficiencies in the criminal system. Thus, I cannot accept the
plurality's argument that respondent could constitutionally be
denied
Page 426 U. S. 333
a free transcript because
"[r]espondent in this case had an opportunity for direct appeal,
and, had he chosen to pursue it, he would have been furnished a
free transcript of the trial proceedings."
Ante at
426 U. S. 324.
The Constitution demands that respondent, despite his indigency, be
afforded the same opportunity for collateral review of his
conviction as the nonindigent. [
Footnote 2/2]
"If [the Government] has a general policy of allowing
[collateral relief], it cannot make lack of means an effective bar
to the exercise of this opportunity. The [Government] cannot keep
the word of promise to the ear of those illegally convicted and
break it to their hope."
Griffin v. Illinois, 351 U.S. at
351 U. S. 24
(Frankfurter, J., concurring in judgment).
The plurality's reliance,
ante at
426 U. S. 324,
upon
Ross v. Moffitt, 417 U. S. 600,
417 U. S. 616
(1974), for the proposition that, "[i]n the context of a criminal
proceeding, [equal protection] require[s] only
an adequate
opportunity to present [one's] claims fairly'" is patently
misplaced. This quotation from Ross, read in context,
speaks not merely to equality of opportunity in the overall
criminal process, but also to equality of opportunity at any stage
of the process where the validity of the defendant's restraint or
conviction is the primary consideration.
Page 426 U. S. 334
I reject as wholly fallacious the argument that adequacy of
opportunity to present claims at trial and on direct appeal so far
diminishes the importance of collateral review that discrimination
between indigent and nonindigent in post-conviction proceedings is
constitutionally tolerable. That argument is implicitly, if not
explicitly, rejected in the unbroken line of our decisions that
make no distinction, for purposes of equal protection analysis,
between collateral proceedings and trials and direct appeals. Any
distinction must necessarily be constitutionally intolerable where
the stakes are no less than the constitutionality of a criminal
conviction. Any distinction would also be plainly inconsistent with
the explicit recognition given habeas corpus in Art. I, § 9, cl. 2,
of the Constitution.
See Fay v. Noia, 372 U.
S. 391,
372 U. S.
399-403 (1963). And for federal prisoners, "history
makes clear that § 2255 was intended to afford federal prisoners a
remedy identical in scope to federal habeas corpus."
Davis v.
United States, 417 U. S. 333,
417 U. S. 343
(1974).
Today's decision empties of all promise the Court's assurance
only six years ago that decisions applying
Griffin
"have pointedly demonstrated that the passage of time has
heightened, rather than weakened, the attempts [by this Court] to
mitigate the disparate treatment of indigents in the criminal
process."
Williams v. Illinois, 399 U. S. 235,
399 U. S. 241
(1970). I dissent.
[
Footnote 2/1]
Respondent's other allegation is insufficiency of the evidence.
Two of our decisions plainly indicate that this allegation suffices
to require provision of a verbatim transcript.
See Mayer v.
City of Chicago, 404 U. S. 189
(1971);
Draper v. Washington, 372 U.
S. 487 (1963).
Mayer also indicated that an
allegation of prejudicial prosecutorial misconduct, 404 U.S. at
404 U. S. 198,
also requires provision of a transcript. That claim, for purposes
of substantiation on appeal or collateral review, is like
respondent's first claim of ineffective assistance of counsel.
Mayer, 404 U.S. at
404 U. S. 195,
held that, where the grounds of appeal are insufficiency of the
evidence and prosecutorial misconduct, the defendant need only
"make out a colorable need for a complete transcript" in order to
be entitled to it.
[
Footnote 2/2]
Indeed, in
Burns v. Ohio, 360 U.
S. 252 (1959), a filing fee for direct appeals was held
invalid as applied to indigents, even though the indigent
petitioner there had already received one appellate review of his
conviction. As the Court stated:
"[T]he State argues that petitioner received one appellate
review of his conviction in Ohio, while, in
Griffin,
Illinois had left the defendant without any judicial review of his
conviction. This is a distinction without a difference for, as
Griffin holds, once the State chooses to establish
appellate review in criminal cases, it may not foreclose indigents
from access to any phase of that procedure because of their
poverty."
Id. at
360 U. S.
257.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
WHITE, and MR. JUSTICE MARSHALL join, dissenting.
The decisive question in this case is whether, in judging the
sufficiency of respondent's motion, we should assume that his
allegations are true.
He has alleged that there was insufficient evidence to
Page 426 U. S. 335
support his conviction, but that he did not appeal. If he had
appealed, respondent would have obtained the transcript of the
trial at Government expense. [
Footnote
3/1] He has also alleged that his lawyer did not provide him
with the effective representation at trial that the Sixth Amendment
requires, and that this conclusion would be supported by an
examination of the trial transcript. Respondent has neither the
training nor the memory to allege the factual basis for that
conclusion. If, however, that conclusion is accurate, he is
entitled not only to a transcript but to a new trial.
As the plurality points out, there are legitimate reasons for
holding that respondent's allegations are not specific enough. In
most cases, the pleader should be able to set forth more factual
details to support his ultimate conclusion. If respondent's
pleading is adequate, almost any general statement claiming
ineffective assistance of counsel would entitle a prisoner to a
transcript in a proceeding under § 2255. In short, the right to a
transcript at that stage would be almost as automatic as when a
direct appeal is taken. Thus, in a sense, this case presents the
question whether the defendant's right to a transcript at
Government expense should survive if he fails to take a direct
appeal.
There are two reasons why I would answer that question in the
affirmative and accept respondent's allegations at face value for
purposes of determining whether his motion is frivolous and whether
a transcript is necessary to decide the claims he asserts.
First, § 753(f) should be interpreted to establish a standard of
nonfrivolousness and need that may be fairly administered. The
statute itself does not address the standard that judges are to use
in determining "that the suit or appeal is not frivolous and that
the transcript is
Page 426 U. S. 336
needed to decide the issue presented by the suit or appeal," and
the legislative history is also silent on the question. [
Footnote 3/2] The plurality reads the
statute to impose upon the § 2255 movant the burden of putting
forward "some factual allegations" indicating a denial of
constitutional rights,
ante at
426 U. S. 326,
but this reading creates the risk that district judges will
exercise the discretion conferred by the statute on a haphazard,
rather than a principled, basis. In many cases, the judge can have
no rational basis for determining whether or not the movant could
ultimately succeed on the merits without first
Page 426 U. S. 337
ordering a transcript. [
Footnote
3/3] Unquestionably some judges routinely order a transcript in
a case like this, while others do not. Given the uncertainty of the
standard adopted by the plurality, [
Footnote 3/4] the indigent's right to protection against
the risk that his appointed counsel was in fact ineffective depends
on the happenstance of what district judge has been assigned to his
case. Such an important protection should not depend on such a
fortuitous circumstance. In short, the administration of justice in
the federal courts would be more evenhanded if the indigent's right
to a transcript were not dependent either upon the advice he
receives from counsel at the time when he may still file a direct
appeal, [
Footnote 3/5] or upon
his
Page 426 U. S. 338
later ability to persuade a trial judge that, if the transcript
were available, it would show that counsel's advice was actually
unsound. The indigent is at least entitled to a transcript of
sufficient completeness to permit a determination of frivolousness.
Cf. Coppedge v. United States, 369 U.
S. 438,
369 U. S.
445-446. [
Footnote
3/6]
Second, in my judgment, a ruling in respondent's favor would
tend to improve the administration of justice in the federal
system. If, as seems probable, such a ruling would make transcripts
available almost automatically in § 2255 proceedings, it would make
good sense for federal prosecutors to adopt the practice of
routinely ordering the transcript at the conclusion of every
criminal trial resulting in conviction. Such a practice would
eliminate a serious cause of delay in the processing of criminal
appeals. [
Footnote 3/7] Even
assuming
Page 426 U. S. 339
an increase in monetary costs, [
Footnote 3/8] we should take into account the costs
associated with unnecessary delay in the appellate process and the
saving in judges' time that would result from the elimination of
the need to decide questions such as this. One of our Nation's
scarcest resources is the time of our judges; if spending a few
dollars [
Footnote 3/9] for
automatic disposition of preliminary issues will enable them to
devote extra time to adjudicating disputes on the merits, the money
will be well spent.
See Coppedge, supra at
369 U. S.
450-452;
id. at
369 U. S. 458
(STEWART, J., concurring); J. Frank, American Law: The Case for
Page 426 U. S. 340
Radical Reform 85-110 (1969). More importantly, routine
availability of transcripts would minimize the danger -- which is
not so insignificant that it can be safely ignored -- that the
rights of an indigent defendant may be lost because of the
ineptitude of his appointed counsel.
I recognize that my view does not reflect a necessary reading of
the statute as applied to respondent's § 2255 motion, but it
certainly is permissible to rule as a matter of law that his
allegations are sufficient to plead a nonfrivolous claim that
cannot be resolved without a transcript. [
Footnote 3/10] Such a ruling would have the added
virtue of avoiding the constitutional issue discussed in
426 U. S.
Cf. United States v. Jin Fuey Moy, 241 U.
S. 394,
241 U. S. 401.
On balance, I would therefore affirm the judgment of the Court of
Appeals for the Ninth Circuit.
[
Footnote 3/1]
28 U.S.C. § 753(f); 18 U.S.C. § § 3006A(a), (c), (d)(6).
[
Footnote 3/2]
The provision for free transcripts in § 2255 cases was added in
1965 by Pub.L. 89-167, 79 Stat. 647, which followed verbatim a
proposal of the Judicial Conference in 1961. Report of the Judicial
Conference of the United States, Proceedings 100-101 (1961). The
primary purpose of the amendment was to make transcripts as
available to indigent federal prisoners on § 2255 motions as on
habeas corpus.
See H.R.Rep. No. 133, 89th Cong., 1st Sess.
(1965); S.Rep. No. 617, 89th Cong., 1st Sess. (1965); 111 Cong.Rec.
5000 (1965) (remarks of Rep. Celler);
id. at 20828-20829.
The legislative sources do not discuss what standards should be
applied in determining nonfrivolousness and need.
Specifically, the legislative history does not address the
question whether federal prisoners are required to make a stronger
showing of nonfrivolousness and need on § 2255 motions than on
habeas corpus. Although § 753(f) expressly requires certification
of nonfrivolousness and need only in § 2255 cases, it requires
prior leave to proceed
in forma pauperis in both habeas
corpus and § 2255 proceedings. This requirement, in turn, imports
the requirement of nonfrivolousness contained in 28 U.S.C. §
1915(d). The legislative history contains no indication that the
standard of nonfrivolousness for § 2255 cases was to be any
stronger than that imposed by § 1915(d).
See Blackmun,
Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus
Cases, 43 F.R.D. 343, 356357 (1967). Indeed, § 1915 is nowhere
mentioned. Nor does the requirement of need impose any additional
burden upon § 2255 movants, since § § 753(f) and 1915(d) could not
reasonably be interpreted to grant a right to a transcript to
habeas corpus petitioners who assert nonfrivolous claims that can
be resolved without a transcript.
[
Footnote 3/3]
Since our most gifted trial lawyers usually need daily copy to
be sure of exactly what happened in the courtroom the preceding
day, and since the passage of time is bound to cause any trial to
be blended with many others in the judge's memory, it is almost
inconceivable that the judge can determine whether a motion has
arguable merit without the benefit of a transcript.
[
Footnote 3/4]
Would the plurality regard respondent's pleadings as sufficient
if he had alleged that his lawyer failed to object to inadmissible
evidence, failed to argue effectively to the jury, failed to advise
him properly about his appeal rights, or failed to conduct an
adequate cross-examination of key prosecution witnesses? Such
allegations are just as easily made as the general claim of
ineffectiveness of counsel, and just as difficult to support by
factual details without the assistance of a transcript. Rather than
requiring the district judge to take the time to evaluate all the
permutations of such allegations as these, is it not more sensible
to make the record available promptly and automatically?
[
Footnote 3/5]
Indeed, the failure of respondent's attorney to file a notice of
appeal itself supports his claim of denial of effective assistance
of counsel. Because notice of appeal from a criminal conviction
must be filed within the 10-day period specified in Fed.Rule
App.Proc. 4(b), most defense counsel routinely file such notice in
order to protect their clients' right to appeal and to obtain a
transcript. Furthermore, in the present case, respondent
represented in this Court, although not in the District Court, that
he did not appeal from his conviction because he was advised by his
lawyer that "
it would interfere with a motion to modify
sentence.'" Brief for Respondent 3.
[
Footnote 3/6]
Although I have described that right as "almost" the equivalent
of the absolute right to a full transcript on direct appeal, the
difference between the two is significant. Before Congress amended
§ 753(f) to provide for automatic availability of transcripts,
Pub.L. 91-545, 84 Stat. 1412, the statute already authorized
transcripts for appellants proceeding
in forma pauperis,
28 U.S.C. § 753(f) (1964 ed., Supp. V), but, under
Coppedge, 369 U.S. at
369 U. S. 446,
it only entitled the appellant to a transcript sufficient to
determine nonfrivolousness. The fact that Congress amended the
statute to give the appellant the right to a complete transcript
demonstrates (a) that Congress was aware of this difference, and
(b) that recognition of a right in a § 2255 context which is only
"almost" as valuable as the right on direct appeal is consistent
with the intent of Congress.
[
Footnote 3/7]
As Judge Craven noted in
Jones v. Superintendent, Virginia
State Farm, 460 F.2d 150, 153 n. 4 (CA4 1972),
rehearing
denied, 465 F.2d 1091,
cert. denied, 410 U.S. 944
(1973): "It has been noted time and again that the delay in
deciding appeals is often attributable to delay in getting a
transcript." Since the allowance of bail pending appeal is almost
routine in the federal system (a routine, incidentally, which might
well be restudied), defendants may postpone their incarceration by
delaying their appeals as long as possible, and, thus, they have a
practical motivation for not ordering transcripts any sooner than
necessary.
[
Footnote 3/8]
Appeals are now filed in approximately 75% of criminal cases in
which a defendant is convicted after trial. The rate has increased
steadily from approximately 46% in Fiscal Year 1966 to
approximately 75% in Fiscal Year 1973, where it has remained.
See Annual Reports of the Director of the Administrative
Office of the United States Courts, Tables B1, D4 (1966-1969,
1971-1975) (compare total criminal appeals commenced with total
convictions after trial). Since appeals are taken from such a high
percentage of convictions after trial, since experience teaches us
that the appeal rate is more apt to increase than decrease, and
since an appreciable number of transcripts are no doubt prepared in
§ 2255 proceedings already, a rule requiring the automatic
preparation of a transcript would have a minimal impact on the
budget. Even if the total number of transcripts would increase
significantly, it is doubtful that there would be a parallel
increase in cost, because there would surely be a substantial
saving in substituting a routine practice for the present practice
of ordering transcripts individually, often at a time when the
court reporter is faced with an appellate deadline.
[
Footnote 3/9]
I use the words "few dollars" advisedly, because the entire cost
of subsidizing the defense of indigents, including the fees and
expenses of appointed counsel, has amounted to between 5% and 9% of
the expenditures for the lower federal courts in recent years,
which, in turn, have been less than 1/10 of 1% of the national
budget. Annual Reports of the Director of the Administrative Office
of the United States Courts VI-3 (1975), IV-2 (1974), III-3 (1973),
III-3 (1972); Budget of the United States Government: Fiscal Year
1977, p. 153 (1976).
[
Footnote 3/10]
Cf. Hospital Bldg. Co. v. Rex Hospital Trustees,
425 U. S. 738,
425 U. S.
746-747;
Haines v. Kerner, 404 U.
S. 519,
404 U. S.
520-521;
Conley v. Gibson, 355 U. S.
41,
355 U. S.
45-46.