SMITH, WARDEN v. ROBBINS

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SMITH, WARDEN v. ROBBINS
certiorari to the united states court of appeals for
the ninth circuit
No. 98–1037. Argued October 5, 1999—Decided January 19, 2000
An attorney appointed to represent an indigent defendant on appeal may
conclude that an appeal would be frivolous and request that the appel-
late court allow him to withdraw or that the court dispose of the case
without the filing of merits briefs. In Anders v. California, 386 U. S.
738, this Court found that, in order to protect a defendant’s constitu-
tional right to appellate counsel, courts must safeguard against the risk
of granting such requests where an appeal is not actually frivolous;
found California’s procedure for evaluating such requests inadequate;
and set forth an acceptable procedure. California adopted a new proce-
dure in People v. Wende, 25 Cal. 3d 436, 600 P. 2d 1071. Unlike under
the Anders procedure, counsel under Wende neither explicitly states
that his review has led him to conclude that an appeal would be frivolous
nor requests to withdraw; instead he is silent on the merits of the case
and offers to brief issues at the court’s direction. A California state-
court jury convicted respondent Robbins of second-degree murder and
grand theft. His appointed counsel on appeal concluded that appeal
would be frivolous and filed with the State Court of Appeal a brief that
complied with the Wende procedure. Agreeing with counsel’s assess-
ment, the Court of Appeal affirmed. The California Supreme Court
denied review. After exhausting his state postconviction remedies,
Robbins sought federal habeas relief, arguing, inter alia, that he had
been denied effective assistance of appellate counsel because his coun-
sel’s Wende brief did not comply with the Anders requirement that the
brief refer “to anything in the record that might arguably support the
appeal,” 386 U. S., at 744. The District Court agreed, concluding that
there were at least two issues that might arguably have supported Rob-
bins’ appeal and finding that his counsel’s failure to include them in his
brief deviated from the Anders procedure and thus amounted to defi-
cient performance by counsel. Rather than requiring Robbins to prove
prejudice from this deficiency, the court applied a presumption of preju-
dice. The Ninth Circuit agreed, concluding that Anders, together with
Douglas v. California, 372 U. S. 353—which held that States must pro-
vide appointed counsel to indigent criminal defendants on appeal—set
forth the exclusive procedure by which appointed counsel’s performance
could be constitutional, and that counsel’s brief failed to comply with

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260 SMITH v. ROBBINS
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that procedure. The court, however, remanded the case for the District
Court to consider other trial errors raised by Robbins.
Held:
1. The Anders procedure is only one method of satisfying the Consti-
tution’s requirements for indigent criminal appeals; the States are free
to adopt different procedures, so long as those procedures adequately
safeguard a defendant’s right to appellate counsel. Pp. 269–276.
(a) In finding that the California procedure at issue in Anders—
which permitted appellate counsel to withdraw upon filing a conclusory
letter stating that the appeal had “no merit” and permitted the appellate
court to affirm the conviction upon reaching the same conclusion follow-
ing a review of the record—did not comport with fair procedure and
lacked the equality that the Fourteenth Amendment requires, this
Court placed the case within a line of precedent beginning with Griffin
v. Illinois, 351 U. S. 12, and continuing with Douglas v. California, 372
U. S. 353, that imposed constitutional constraints on those States choos-
ing to create appellate review. Comparing the California procedure to
other procedures that this Court had found invalid and to statutory re-
quirements in the federal courts governing appeals by indigents with
appointed counsel, the Court concluded that the finding that the appeal
had “no merit” was inadequate because it did not mean that the appeal
was so lacking in prospects as to be frivolous. The Court, in a final,
separate section, set out what would be an acceptable procedure for
treating frivolous appeals. Pp. 269–272.
(b) The Ninth Circuit erred in finding that Anders’ final section,
though unnecessary to the holding in that case, was obligatory upon the
States. This Court has never so held; its precedents suggest otherwise;
and the Ninth Circuit’s view runs contrary to this Court’s established
practice. In McCoy v. Court of Appeals of Wis., Dist. 1, 486 U. S. 429,
this Court rejected a challenge to Wisconsin’s variation on the Anders
procedure, even though that variation, in at least one respect, provided
less effective advocacy for an indigent. In Pennsylvania v. Finley, 481
U. S. 551, the Court explained that the Anders procedure is not an inde-
pendent constitutional command, but rather a prophylactic framework;
it did not say that this was the only framework that could adequately
vindicate the right to appellate counsel announced in Douglas. Simi-
larly, in Penson v. Ohio, 488 U. S. 75, the Court described Anders as
simply erecting safeguards. Finally, any view of the procedure de-
scribed in Anders’ last section that converted it from a suggestion into
a straitjacket would contravene this Court’s established practice of
allowing the States wide discretion, subject to the minimum require-

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ments of the Fourteenth Amendment, to experiment with solutions to
difficult policy problems. See, e. g., Griffin, supra. The Court, be-
cause of its status as a court—particularly a court in a federal system—
avoids imposing a single solution on the States from the top down
and instead evaluates state procedures one at a time, while leaving
“the more challenging task of crafting appropriate procedures . . . to
the laboratory of the States . . . in the first instance,” Cruzan v. Di-
rector, Mo. Dept. of Health, 497 U. S. 261 (O’Connor, J., concurring).
Pp. 272–276.
2. California’s Wende procedure does not violate the Fourteenth
Amendment. Pp. 276–284.
(a) The precise rationale for the Griffin and Douglas line of cases
has never been explicitly stated, but this Court’s case law reveals that
the Equal Protection and Due Process Clauses of the Fourteenth
Amendment largely converge to require that a State’s procedure “afford
adequate and effective appellate review to indigent defendants,” Griffin,
supra, at 20 (plurality opinion). A State’s procedure provides such re-
view so long as it reasonably ensures that an indigent’s appeal will be
resolved in a way that is related to the merit of that appeal. In deter-
mining whether a particular procedure satisfies this standard, it is im-
portant to focus on the underlying goals that the procedure should
serve—to ensure that those indigents whose appeals are not frivolous
receive the counsel and merits brief required by Douglas, and also to
enable the State to “protect itself so that frivolous appeals are not subsi-
dized and public moneys not needlessly spent,” Griffin, supra, at 24
(Frankfurter, J., concurring in judgment). For an indigent’s right to
counsel on direct appeal does not include the right to bring a frivo-
lous appeal and, concomitantly, does not include the right to counsel
for bringing a frivolous appeal. Anders’ obvious goal was to prevent
this limitation on the right to appellate counsel from swallowing
the right itself, and the Court does not retreat from that goal here.
Pp. 276–278.
(b) The Wende procedure reasonably ensures that an indigent’s ap-
peal will be resolved in a way that is related to the appeal’s merit. A
comparison of that procedure to those evaluated in this Court’s chief
cases demonstrates that it affords indigents the adequate and effective
appellate review required by the Fourteenth Amendment. The Wende
procedure is undoubtedly far better than those procedures the Court
has found inadequate. A significant fact in finding the old California
procedure inadequate in Anders, and also in finding inadequate the
procedures that the Court reviewed in Eskridge v. Washington Bd. of
Prison Terms and Paroles, 357 U. S. 214, and Lane v. Brown, 372 U. S.

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477, two of the precedents on which the Anders Court relied, was that
those procedures required only a determination that the defendant was
unlikely to prevail on appeal, not that the appeal was frivolous. Wende,
by contrast, requires both counsel and the court to find the appeal to be
lacking in arguable issues, i. e., frivolous. An additional problem with
the old California procedure was that it apparently permitted an appel-
late court to allow counsel to withdraw and then decide the appeal with-
out appointing new counsel. Such a procedure was struck down in Pen-
son v. Ohio, supra, because it permitted a basic violation of the Douglas
right to have counsel until a case is determined to be frivolous and to
receive a merits brief for a nonfrivolous appeal. Under Wende, by con-
trast, Douglas violations do not occur, both because counsel does not
move to withdraw and because the court orders briefing if it finds argu-
able issues. The procedure disapproved in Anders also only required
counsel to file a one-paragraph “bare conclusion” that the appeal had no
merit, while Wende requires that counsel provide a summary of the
case’s procedural and factual history, with citations of the record, in
order to ensure that a trained legal eye has searched the record for
arguable issues and to assist the reviewing court in its own evaluation.
Finally, by providing at least two tiers of review, the Wende procedure
avoids the additional flaw, found in the Eskridge, Lane, and Douglas
procedures, of having only one such tier. Pp. 278–281.
(c) The Wende procedure is also at least comparable to those proce-
dures the Court has approved. By neither requiring the Wende brief
to raise legal issues nor requiring counsel to explicitly describe the case
as frivolous, California has made a good-faith effort to mitigate one of
the problems that critics have found with Anders, namely, the require-
ment that counsel violate his ethical duty as an officer of the court (by
presenting frivolous arguments) as well as his duty to further his client’s
interests (by characterizing the client’s claims as frivolous). Wende
also attempts to resolve another Anders problem—that it apparently
adopts gradations of frivolity and uses two different meanings for the
phrase “arguable issue”—by drawing the line at frivolity and by defin-
ing arguable issues as those that are not frivolous. Finally, the Wende
procedure appears to be, in some ways, better than the one approved in
McCoy, and in other ways, worse. On balance, the Court cannot say
that the latter, assuming, arguendo, that they outweigh the former, do
so sufficiently to make the Wende procedure unconstitutional, and the
Court’s purpose under the Constitution is not to resolve such argu-
ments. The Court addresses not what is prudent or appropriate, but
what is constitutionally compelled. United States v. Cronic, 466 U. S.
648, 665, n. 38. It is enough to say that the Wende procedure, like the

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Anders and McCoy procedures, and unlike the ones in, e. g., Douglas
and Penson, affords adequate and effective appellate review for criminal
indigents. Pp. 281–284.
3. This case is remanded for the Ninth Circuit to evaluate Robbins’
ineffective-assistance claim. It may be that his appeal was not frivo-
lous and that he was thus entitled to a merits brief. Both the District
Court and the Ninth Circuit found that there were two arguable issues
on direct appeal, but it is unclear how they used the phrase “arguable
issues.” It is therefore necessary to clarify how strong those issues
are. The proper standard for evaluating Robbins’ claim on remand is
that enunciated in Strickland v. Washington, 466 U. S. 668: He must
first show that his counsel was objectively unreasonable, id., at 687–691,
in failing to find arguable issues to appeal, and, if Robbins succeeds in
such a showing, he then has the burden of demonstrating prejudice, id.,
at 694. He must satisfy both prongs of the Strickland test to prevail,
for his claim does not warrant a presumption of prejudice. He has re-
ceived appellate counsel who has complied with a valid state procedure
for determining whether his appeal is frivolous, and the State has not
left him without counsel on appeal. Thus, it is presumed that the result
of the proceedings is reliable, and Robbins must prove the presumption
incorrect. Further, his claim does not fall within any of the three cate-
gories of cases in which prejudice is presumed, for it does not involve
the complete denial of counsel on appeal, state interference with coun-
sel’s assistance, or an actual conflict of interest on his counsel’s part.
Id., at 692, 694. Pp. 284–289.
152 F. 3d 1062, reversed and remanded.
Thomas, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J.,
filed a dissenting opinion, in which Ginsburg, J., joined, post, p. 289.
Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and
Breyer, JJ., joined, post, p. 292.
Carol Frederick Jorstad, Deputy Attorney General of
California, argued the cause for petitioner. With her on the
briefs were Bill Lockyer, Attorney General, David P. Dru-
liner, Chief Assistant Attorney General, Carol Wendelin
Pollack, Senior Assistant Attorney General, and Donald
E. De Nicola, Deputy Attorney General.

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Ronald J. Nessim, by appointment of the Court, 526 U. S.
1109, argued the cause for respondent. With him on the
brief were Thomas R. Freeman and Elizabeth A. Newman.*
Justice Thomas delivered the opinion of the Court.
Not infrequently, an attorney appointed to represent an
indigent defendant on appeal concludes that an appeal would
be frivolous and requests that the appellate court allow him
to withdraw or that the court dispose of the case without the
filing of merits briefs. In Anders v. California, 386 U. S.
738 (1967), we held that, in order to protect indigent defend-
ants’ constitutional right to appellate counsel, courts must
safeguard against the risk of granting such requests in cases
where the appeal is not actually frivolous. We found inade-
quate California’s procedure—which permitted appellate
counsel to withdraw upon filing a conclusory letter stating
that the appeal had “no merit” and permitted the appellate
court to affirm the conviction upon reaching the same conclu-
sion following a review of the record. We went on to set
*Briefs of amici curiae urging reversal were filed for the State of Ari-
zona et al. by Janet Napolitano, Attorney General of Arizona, Colleen L.
French, Assistant Attorney General, and Paul J. McMurde; and by the
Attorneys General for their respective States as follows: Bill Pryor of
Alabama, M. Jane Brady of Delaware, Thurbert E. Baker of Georgia, Mike
Moore of Mississippi, Frankie Sue Del Papa of Nevada, D. Michael Fisher
of Pennsylvania, Paul G. Summers of Tennessee, Ken Salazar of Colorado,
Robert A. Butterworth of Florida, Richard P. Ieyoub of Louisiana, Don
Stenberg of Nebraska, Patricia A. Madrid of New Mexico, Charles M.
Condon of South Carolina, and Mark L. Earley of Virginia; for the Cali-
fornia Academy of Appellate Lawyers by Robert S. Gerstein, Jay-Allen
Eisen, Michael M. Berger, Peter W. Davis, Rex S. Heinke, Wendy C.
Lascher, Gerald Z. Marer, and Jonathan B. Steiner; and for the Criminal
Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson.
Briefs of amici curiae urging affirmance were filed for the National
Association of Criminal Defense Lawyers by Leon Friedman; and for
Jesus Garcia Delgado by Michael B. Dashjian.
Gregory R. Smith filed a brief for retired Justice Armand Arabian et al.
as amici curiae.

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forth an acceptable procedure. California has since adopted
a new procedure, which departs in some respects from the
one that we delineated in Anders. The question is whether
that departure is fatal. We hold that it is not. The proce-
dure we sketched in Anders is a prophylactic one; the States
are free to adopt different procedures, so long as those proce-
dures adequately safeguard a defendant’s right to appellate
counsel.
I
A
Under California’s new procedure, established in People v.
Wende, 25 Cal. 3d 436, 441–442, 600 P. 2d 1071, 1074–1075
(1979), and followed in numerous cases since then, see, e. g.,
People v. Rowland, 75 Cal. App. 4th 61, 63, 88 Cal. Rptr. 2d
900, 901 (1999), counsel, upon concluding that an appeal
would be frivolous, files a brief with the appellate court that
summarizes the procedural and factual history of the case,
with citations of the record. He also attests that he has re-
viewed the record, explained his evaluation of the case to his
client, provided the client with a copy of the brief, and in-
formed the client of his right to file a pro se supplemental
brief. He further requests that the court independently ex-
amine the record for arguable issues. Unlike under the An-
ders procedure, counsel following Wende neither explicitly
states that his review has led him to conclude that an appeal
would be frivolous (although that is considered implicit, see
Wende, 25 Cal. 3d, at 441–442, 600 P. 2d, at 1075) nor requests
leave to withdraw. Instead, he is silent on the merits of the
case and expresses his availability to brief any issues on
which the court might desire briefing. See generally id., at
438, 441–442, 600 P. 2d, at 1072, 1074–1075.
The appellate court, upon receiving a “Wende brief,” must
“conduct a review of the entire record,” regardless of
whether the defendant has filed a pro se brief. Id., at 441–
442, 600 P. 2d, at 1074–1075. The California Supreme Court

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in Wende required such a thorough review notwithstanding
a dissenting Justice’s argument that it was unnecessary and
exceeded the review that a court performs under Anders.
See 25 Cal. 3d, at 444–445, 600 P. 2d, at 1077 (Clark, J., con-
curring in judgment and dissenting in part); see also id., at
444, 600 P. 2d, at 1076 (“The precise holding in Anders was
that a ‘no merit’ letter . . . ‘was not enough.’ . . . Just what
is ‘enough’ is not clear, but the majority of the court in that
case did not require an appellate court to function as co-
counsel”). If the appellate court, after its review of the rec-
ord pursuant to Wende, also finds the appeal to be frivolous,
it may affirm. See id., at 443, 600 P. 2d, at 1076 (majority
opinion). If, however, it finds an arguable (i. e., nonfrivo-
lous) issue, it orders briefing on that issue. Id., at 442, n. 3,
600 P. 2d, at 1075, n. 3.1
B
In 1990, a California state-court jury convicted respondent
Lee Robbins of second-degree murder (for fatally shooting
his former roommate) and of grand theft of an automobile
(for stealing a truck that he used to flee the State after com-
mitting the murder). Robbins was sentenced to 17 years to
life. He elected to represent himself at trial, but on appeal
1 In addition to this double review and double determination of frivolity,
California affords a third layer of review, through the California Appellate
Projects, described in a recent opinion by the California Court of Appeal
for the First District:
“[The appellate projects] are under contract to the court; their contrac-
tual duties include review of the records to assist court-appointed counsel
in identifying issues to brief. If the court-appointed counsel can find no
meritorious issues to raise and decides to file a Wende brief, an appellate
project staff attorney reviews the record again to determine whether a
Wende brief is appropriate. Thus, by the time the Wende brief is filed in
the Court of Appeal, the record in the case has been reviewed both by the
court-appointed counsel (who is presumably well qualified to handle the
case) and by an experienced attorney on the staff of [the appellate proj-
ect].” People v. Hackett, 36 Cal. App. 4th 1297, 1311, 43 Cal. Rptr. 2d 219,
228 (1995).

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he received appointed counsel. His appointed counsel, con-
cluding that an appeal would be frivolous, filed with the Cali-
fornia Court of Appeal a brief that complied with the Wende
procedure.2 Robbins also availed himself of his right under
Wende to file a pro se supplemental brief, filing a brief in
which he contended that there was insufficient evidence to
support his conviction and that the prosecutor violated
Brady v. Maryland, 373 U. S. 83 (1963), by failing to disclose
exculpatory evidence.
The California Court of Appeal, agreeing with counsel’s
assessment of the case, affirmed. The court explained that
it had “examined the entire record” and had, as a result,
concluded both that counsel had fully complied with his re-
sponsibilities under Wende and that “no arguable issues
exist.” App. 39. The court added that the two issues that
Robbins raised in his supplemental brief had no support in
the record. Ibid. The California Supreme Court denied
Robbins’ petition for review.
After exhausting state postconviction remedies, Robbins
filed in the United States District Court for the Central Dis-
trict of California the instant petition for a writ of habeas
corpus pursuant to 28 U. S. C. § 2254.3 Robbins renewed his
Brady claim, argued that the state trial court had erred by
not allowing him to withdraw his waiver of his right to trial
counsel, and added nine other claims of trial error. In addi-
tion, and most importantly for present purposes, he claimed
that he had been denied effective assistance of appellate
counsel because his appellate counsel’s Wende brief failed to
comply with Anders v. California, 386 U. S., at 744. Anders
2 Before filing his Wende brief, counsel consulted with the California
Appellate Project for the Second District Court of Appeal and received
its permission to file such a brief. App. 43.
3 The Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat.
1214, which amended § 2254 and related provisions, does not apply to re-
spondent’s habeas petition, since he filed his petition before that Act’s ef-
fective date of April 24, 1996. See Lindh v. Murphy, 521 U. S. 320 (1997).

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set forth a procedure for an appellate counsel to follow in
seeking permission to withdraw from the representation
when he concludes that an appeal would be frivolous; that
procedure includes the requirement that counsel file a brief
“referring to anything in the record that might arguably sup-
port the appeal,” ibid.
The District Court agreed with Robbins’ last claim, con-
cluding that there were at least two issues that, pursuant to
Anders, counsel should have raised in his brief (in a Wende
brief, as noted above, counsel is not required to raise issues):
first, whether the prison law library was adequate for Rob-
bins’ needs in preparing his defense after he elected to dis-
miss his appointed counsel and proceed pro se at trial, and,
second, whether the trial court erred in refusing to allow
him to withdraw his waiver of counsel. The District Court
did not attempt to determine the likelihood that either of
these two issues would have prevailed in an appeal. Rather,
it simply concluded that, in the language of the Anders pro-
cedure, these issues “might arguably” have “support[ed]
the appeal,” App. 51, n. 6 (citing Anders), and thus that Rob-
bins’ appellate counsel, by not including them in his brief,
deviated from the procedure set forth in Anders. The court
concluded that such a deviation amounted to deficient per-
formance by counsel. In addition, rather than requiring
Robbins to show that he suffered prejudice from this defi-
cient performance, the District Court applied a presumption
of prejudice. App. 49. Thus, based simply on a finding that
appellate counsel’s brief was inadequate under Anders, the
District Court ordered California to grant respondent a new
appeal within 30 days or else release him from custody.
The United States Court of Appeals for the Ninth Circuit
agreed with the District Court on the Anders issue. In the
Ninth Circuit’s view, Anders, together with Douglas v. Cali-
fornia, 372 U. S. 353 (1963), which held that States must pro-
vide appointed counsel to indigent criminal defendants on
appeal, “set forth the exclusive procedure through which ap-

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pointed counsel’s performance can pass constitutional mus-
ter.” 152 F. 3d 1062, 1066 (1998). Rejecting petitioner’s ar-
gument that counsel’s brief was sufficient because it complied
with Wende, the Ninth Circuit concluded that the brief was
deficient because it did not, as the Anders procedure re-
quires, identify any legal issues that arguably could have
supported the appeal. 152 F. 3d, at 1066–1067.4 The court
did not decide whether a counsel’s deviation from Anders,
standing alone, would warrant a new appeal, see 152 F. 3d,
at 1066–1067, but rather concluded that the District Court’s
award of relief was proper because counsel had failed to brief
the two arguable issues that the District Court identified.
The Ninth Circuit remanded, however, for the District Court
to consider respondent’s 11 claims of trial error. Id., at 1069.
The court reasoned that if Robbins prevailed on any of these
claims, it would be unnecessary to order the California Court
of Appeal to grant a new direct appeal. We granted certio-
rari. 526 U. S. 1003 (1999).
II
A
In Anders, we reviewed an earlier California procedure for
handling appeals by convicted indigents. Pursuant to that
procedure, Anders’ appointed appellate counsel had filed a
letter stating that he had concluded that there was “no merit
to the appeal,” 386 U. S., at 739–740. Anders, in response,
sought new counsel; the State Court of Appeal denied the
request, and Anders filed a pro se appellate brief. That
court then issued an opinion that reviewed the four claims in
his pro se brief and affirmed, finding no error (or no prejudi-
cial error). People v. Anders, 167 Cal. App. 2d 65, 333 P. 2d
4 In subsequent cases, the Ninth Circuit has reiterated its view that the
Wende procedure is unconstitutional because it differs from the Anders
procedure. See Delgado v. Lewis, 181 F. 3d 1087, 1090, 1093, stay granted
pending disposition of pet. for cert., 527 U. S. 1066 (1999); Davis v. Kramer,
167 F. 3d 494, 496, 497–498 (1999), cert. pending, No. 98–1427.

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854 (1959). Anders thereafter sought a writ of habeas cor-
pus from the State Court of Appeal, which denied relief, ex-
plaining that it had again reviewed the record and had found
the appeal to be “ ‘without merit.’ ” Anders, 386 U. S., at
740 (quoting unreported memorandum opinion).
We held that “California’s action does not comport with
fair procedure and lacks that equality that is required by the
Fourteenth Amendment.” Id., at 741. We placed the case
within a line of precedent beginning with Griffin v. Illinois,
351 U. S. 12 (1956), and continuing with Douglas, supra, that
imposed constitutional constraints on States when they
choose to create appellate review.5 In finding the California
procedure to have breached these constraints, we compared
it to other procedures we had found invalid and to statutory
requirements in the federal courts governing appeals by in-
digents with appointed counsel. Anders, supra, at 741–743.
We relied in particular on Ellis v. United States, 356 U. S.
674 (1958) (per curiam), a case involving federal statutory
requirements, and quoted the following passage from it:
“ ‘If counsel is convinced, after conscientious investiga-
tion, that the appeal is frivolous, of course, he may ask
to withdraw on that account. If the court is satisfied
that counsel has diligently investigated the possible
grounds of appeal, and agrees with counsel’s evaluation
of the case, then leave to withdraw may be allowed and
leave to appeal may be denied.’ ” Anders, supra, at
741–742 (quoting Ellis, supra, at 675).
In Anders, neither counsel, the state appellate court on di-
rect appeal, nor the state habeas courts had made any finding
of frivolity.6 We concluded that a finding that the appeal
5 The Constitution does not, however, require States to create appellate
review in the first place. See, e. g., Ross v. Moffitt, 417 U. S. 600, 606
(1974) (citing McKane v. Durston, 153 U. S. 684, 687 (1894)).
6 The same was true in Ellis itself. See Ellis v. United States, 249
F. 2d 478, 480–481 (CADC 1957) (Washington, J., dissenting) (“Counsel . . .
concluded that the rulings of the District Court were not ‘so clearly erro-

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had “no merit” was not adequate, because it did not mean
that the appeal was so lacking in prospects as to be “frivo-
lous”: “We cannot say that there was a finding of frivolity by
either of the California courts or that counsel acted in any
greater capacity than merely as amicus curiae which was
condemned in Ellis.” 386 U. S., at 743.
Having rejected the California procedure, we proceeded,
in a final, separate section, to set out what would be an ac-
ceptable procedure for treating frivolous appeals:
“[I]f counsel finds his case to be wholly frivolous, after
a conscientious examination of it, he should so advise the
court and request permission to withdraw. That re-
quest must, however, be accompanied by a brief refer-
ring to anything in the record that might arguably sup-
port the appeal. A copy of counsel’s brief should be
furnished the indigent and time allowed him to raise any
points that he chooses; the court—not counsel—then
proceeds, after a full examination of all the proceedings,
to decide whether the case is wholly frivolous. If it so
finds it may grant counsel’s request to withdraw and dis-
miss the appeal insofar as federal requirements are con-
cerned, or proceed to a decision on the merits, if state
law so requires. On the other hand, if it finds any of
the legal points arguable on their merits (and therefore
not frivolous) it must, prior to decision, afford the indi-
gent the assistance of counsel to argue the appeal.” Id.,
at 744.
We then concluded by explaining how this procedure would
be better than the California one that we had found deficient.
Among other things, we thought that it would “induce the
court to pursue all the more vigorously its own review be-
cause of the ready references not only to the record but also
neous as to constitute probable error.’ . . . Where, as here, there was a
fairly arguable question, counsel should have proceeded to present argu-
ment”), vacated and remanded, 356 U. S. 674 (1958) (per curiam).

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to the legal authorities as furnished it by counsel.” Id., at
745.
B
The Ninth Circuit ruled that this final section of Anders,
even though unnecessary to our holding in that case, was
obligatory upon the States. We disagree. We have never
so held; we read our precedents to suggest otherwise; and
the Ninth Circuit’s view runs contrary to our established
practice of permitting the States, within the broad bounds
of the Constitution, to experiment with solutions to difficult
questions of policy.
In McCoy v. Court of Appeals of Wis., Dist. 1, 486 U. S.
429 (1988), we rejected a challenge to Wisconsin’s variation
on the Anders procedure. Wisconsin had departed from
Anders by requiring Anders briefs to discuss why each issue
raised lacked merit. The defendant argued that this rule
was contrary to Anders and forced counsel to violate his eth-
ical obligations to his client. We, however, emphasized that
the right to appellate representation does not include a right
to present frivolous arguments to the court, 486 U. S., at 436,
and, similarly, that an attorney is “under an ethical obliga-
tion to refuse to prosecute a frivolous appeal,” ibid. (footnote
omitted). Anders, we explained, merely aims to “assure the
court that the indigent defendant’s constitutional rights have
not been violated.” 486 U. S., at 442. Because the Wiscon-
sin procedure adequately provided such assurance, we found
no constitutional violation, notwithstanding its variance from
Anders. See 486 U. S., at 442–444. We did, in McCoy, de-
scribe the procedure at issue as going “one step further”
than Anders, McCoy, supra, at 442, thus suggesting that An-
ders might set a mandatory minimum, but we think this de-
scription of the Wisconsin procedure questionable, since it
provided less effective advocacy for an indigent—in at least
one respect—than does the Anders procedure. The Wiscon-
sin procedure, by providing for one-sided briefing by counsel
against his own client’s best claims, probably made a court

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more likely to rule against the indigent than if the court had
simply received an Anders brief.
In Pennsylvania v. Finley, 481 U. S. 551 (1987), we ex-
plained that the Anders procedure is not “an independent
constitutional command,” but rather is just “a prophylactic
framework” that we established to vindicate the constitu-
tional right to appellate counsel announced in Douglas. 481
U. S., at 555. We did not say that our Anders procedure
was the only prophylactic framework that could adequately
vindicate this right; instead, by making clear that the Consti-
tution itself does not compel the Anders procedure, we sug-
gested otherwise. Similarly, in Penson v. Ohio, 488 U. S. 75
(1988), we described Anders as simply erecting “safeguards.”
488 U. S., at 80.
It is true that in Penson we used some language suggest-
ing that Anders is mandatory upon the States, see 488 U. S.,
at 80–82, but that language was not necessary to the decision
we reached. We had no reason in Penson to determine
whether the Anders procedure was mandatory, because the
procedure at issue clearly failed under Douglas, see infra, at
280. Further, counsel’s action in Penson was closely analo-
gous to the action of counsel that we found invalid in Anders,
see Penson, supra, at 77–78, so there was no need to rely on
the Anders procedure, as opposed to just the Anders holding,
to find counsel’s action improper. See 488 U. S., at 77 (“The
question presented by this case is remarkably similar [to the
one presented in Anders] and therefore requires a similar
answer”).
Finally, any view of the procedure we described in the last
section of Anders that converted it from a suggestion into
a straitjacket would contravene our established practice,
rooted in federalism, of allowing the States wide discretion,
subject to the minimum requirements of the Fourteenth
Amendment, to experiment with solutions to difficult prob-
lems of policy. In Griffin v. Illinois, 351 U. S. 12 (1956),
which we invoked as the foundational case for our holding

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in Anders, see Anders, 386 U. S., at 741, we expressly dis-
claimed any pretensions to rulemaking authority for the
States in the area of indigent criminal appeals. We imposed
no broad rule or procedure but merely held unconstitutional
Illinois’ requirement that indigents pay a fee to receive a
trial transcript that was essential for bringing an appeal.
Justice Frankfurter, who provided the necessary fifth vote
for the holding in Griffin, emphasized that it was not for this
Court “to tell Illinois what means are open to the indigent
and must be chosen. Illinois may prescribe any means that
are within the wide area of its constitutional discretion” and
“may protect itself so that frivolous appeals are not subsi-
dized and public moneys not needlessly spent.” 351 U. S.,
at 24 (opinion concurring in judgment). He added that while
a State could not “bolt the door to equal justice,” it also was
not obliged to “support a wasteful abuse of the appellate
process.” Ibid. The Griffin plurality shared this view, ex-
plaining that the Court was not holding “that Illinois must
purchase a stenographer’s transcript in every case where a
defendant cannot buy it. The Supreme Court [of Illinois]
may find other means of affording adequate and effective
appellate review to indigent defendants.” Id., at 20.
In a related context, we stated this basic principle of feder-
alism in the very Term in which we decided Anders. We
emphatically reaffirmed that the Constitution “has never
been thought [to] establish this Court as a rule-making organ
for the promulgation of state rules of criminal procedure.”
Spencer v. Texas, 385 U. S. 554, 564 (1967) (citing, inter alia,
Griffin, supra). Accord, Medina v. California, 505 U. S.
437, 443–444, 447–448 (1992). Justice Stewart, concurring in
Spencer, explained further:
“If the Constitution gave me a roving commission to
impose upon the criminal courts of Texas my own no-
tions of enlightened policy, I would not join the Court’s
opinion. . . . [But] [t]he question is whether those pro-
cedures fall below the minimum level the Fourteenth

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Amendment will tolerate. Upon that question, I am
constrained to join the opinion and judgment of the
Court.” 385 U. S., at 569.
We have continued to reiterate this principle in recent years.
See Finley, 481 U. S., at 559 (refusing to accept the premise
that “when a State chooses to offer help to those seeking
relief from convictions, the Federal Constitution dictates the
exact form such assistance must assume”); ibid. (explaining
that States have “substantial discretion to develop and im-
plement programs to aid prisoners seeking to secure post-
conviction review”); Murray v. Giarratano, 492 U. S. 1, 13
(1989) (O’Connor, J., concurring) (“[N]or does it seem to me
that the Constitution requires the States to follow any par-
ticular federal model in [postconviction] proceedings. . . .
States [have] considerable discretion”); id., at 14 (Kennedy,
J., concurring in judgment) (“[J]udicial imposition of a cate-
gorical remedy . . . might pretermit other responsible solu-
tions being considered in Congress and state legislatures”).
Although Finley and Murray involved postconviction pro-
ceedings (in which there is no constitutional right to counsel)
rather than direct appeal, we think, as the language of Grif-
fin suggests, that the principle is the same in both contexts.
For in Griffin, as here, there was an underlying constitu-
tional right at issue.
In short, it is more in keeping with our status as a court,
and particularly with our status as a court in a federal sys-
tem, to avoid imposing a single solution on the States from
the top down. We should, and do, evaluate state procedures
one at a time, as they come before us, see Murray, supra,
at 14, while leaving “the more challenging task of crafting
appropriate procedures . . . to the laboratory of the States in
the first instance,” Cruzan v. Director, Mo. Dept. of Health,
497 U. S. 261, 292 (1990) (O’Connor, J., concurring) (citation
and internal quotation marks omitted). We will not cava-
lierly “imped[e] the States’ ability to serve as laboratories
for testing solutions to novel legal problems.” Arizona v.

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Evans, 514 U. S. 1, 24 (1995) (Ginsburg, J., dissenting). Ac-
cordingly, we hold that the Anders procedure is merely one
method of satisfying the requirements of the Constitution for
indigent criminal appeals. States may—and, we are confi-
dent, will—craft procedures that, in terms of policy, are su-
perior to, or at least as good as, that in Anders. The Consti-
tution erects no barrier to their doing so.7
III
Having determined that California’s Wende procedure is
not unconstitutional merely because it diverges from the An-
ders procedure, we turn to consider the Wende procedure on
its own merits. We think it clear that California’s system
does not violate the Fourteenth Amendment, for it provides
“a criminal appellant pursuing a first appeal as of right [the]
minimum safeguards necessary to make that appeal ‘ade-
quate and effective,’ ” Evitts v. Lucey, 469 U. S. 387, 392
(1985) (quoting Griffin, 351 U. S., at 20 (plurality opinion)).
A
As we have admitted on numerous occasions, “ ‘[t]he pre-
cise rationale for the Griffin and Douglas lines of cases has
never been explicitly stated, some support being derived
from the Equal Protection Clause of the Fourteenth Amend-
ment and some from the Due Process Clause of that Amend-
ment.’ ” Evitts, supra, at 403 (quoting Ross v. Moffitt, 417
U. S. 600, 608–609 (1974) (footnote omitted)). But our case
law reveals that, as a practical matter, the two Clauses
largely converge to require that a State’s procedure “affor[d]
adequate and effective appellate review to indigent defend-
ants,” Griffin, 351 U. S., at 20 (plurality opinion). A State’s
procedure provides such review so long as it reasonably en-
7 States have, in fact, already been doing this to some degree. See
Warner, Anders in the Fifty States: Some Appellants’ Equal Protection is
More Equal Than Others’, 23 Fla. St. U. L. Rev. 625, 642–662 (1996); Ari-
zona v. Clark, 196 Ariz. 530, 536–539, 2 P. 3d 89, 95–98 (App. 1999).

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sures that an indigent’s appeal will be resolved in a way that
is related to the merit of that appeal.8 See id., at 17–18 (plu-
rality opinion) (state law regulating indigents’ appeals bore
“no rational relationship to a defendant’s guilt or innocence”);
id., at 22 (Frankfurter, J., concurring in judgment) (law im-
posed “differentiations . . . that have no relation to a rational
policy of criminal appeal”); Douglas, 372 U. S., at 357 (deci-
sion of first appeal “without benefit of counsel, . . . no matter
how meritorious [an indigent’s] case may turn out to be,”
discriminates between rich and poor rather than between
“possibly good and obviously bad cases” (internal quotation
marks omitted)); Rinaldi v. Yeager, 384 U. S. 305, 310 (1966)
(state appellate system must be “free of unreasoned distinc-
tions”); Evitts, supra, at 404 (law in Griffin “decided the
appeal in a way that was arbitrary with respect to the issues
involved”). Compare Finley, supra, at 556 (“The equal pro-
tection guarantee . . . only . . . assure[s] the indigent defend-
ant an adequate opportunity to present his claims fairly in
the context of the State’s appellate process” (quoting Ross,
supra, at 616)), with Evitts, supra, at 405 (“[D]ue process . . .
[requires] States . . . to offer each defendant a fair opportu-
nity to obtain an adjudication on the merits of his appeal”
(discussing Griffin and Douglas)). 9
In determining whether a particular state procedure satis-
fies this standard, it is important to focus on the underlying
goals that the procedure should serve—to ensure that those
indigents whose appeals are not frivolous receive the counsel
and merits brief required by Douglas, and also to enable the
8 Of course, no procedure can eliminate all risk of error. E. g., Walters
v. National Assn. of Radiation Survivors, 473 U. S. 305, 320–321 (1985).
9 Although we have said that an indigent must receive “substantial
equality” compared to the legal assistance that a defendant with paid coun-
sel would receive, McCoy v. Court of Appeals of Wis., Dist. 1, 486 U. S.
429, 438 (1988), we have also emphasized that “[a]bsolute equality is not
required; lines can be and are drawn and we often sustain them,” Douglas
v. California, 372 U. S. 353, 357 (1963).

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State to “protect itself so that frivolous appeals are not sub-
sidized and public moneys not needlessly spent,” Griffin,
supra, at 24 (Frankfurter, J., concurring in judgment). For
although, under Douglas, indigents generally have a right to
counsel on a first appeal as of right, it is equally true that
this right does not include the right to bring a frivolous ap-
peal and, concomitantly, does not include the right to counsel
for bringing a frivolous appeal.10 See McCoy, 486 U. S., at
436–438; Douglas, supra, at 357; see also United States v.
Cronic, 466 U. S. 648, 656, n. 19 (1984) (“Of course, the Sixth
Amendment does not require that [trial] counsel do what is
impossible or unethical”); cf. Nix v. Whiteside, 475 U. S. 157,
175 (1986) (no violation of Sixth Amendment right to the ef-
fective assistance of counsel when trial counsel refuses to
violate ethical duty not to assist his client in presenting per-
jured testimony). To put the point differently, an indigent
defendant who has his appeal dismissed because it is frivo-
lous has not been deprived of “a fair opportunity” to bring
his appeal, Evitts, supra, at 405; see Finley, 481 U. S., at 556,
for fairness does not require either counsel or a full appeal
once it is properly determined that an appeal is frivolous.
The obvious goal of Anders was to prevent this limitation on
the right to appellate counsel from swallowing the right it-
self, see Penson, 488 U. S., at 83–84; McCoy, supra, at 444,
and we do not retreat from that goal today.
B
We think the Wende procedure reasonably ensures that an
indigent’s appeal will be resolved in a way that is related to
10 This distinction gives meaning to our previous emphasis on an indi-
gent appellant’s right to “advocacy.” Although an indigent whose appeal
is frivolous has no right to have an advocate make his case to the appellate
court, such an indigent does, in all cases, have the right to have an attor-
ney, zealous for the indigent’s interests, evaluate his case and attempt to
discern nonfrivolous arguments. See Ellis, 356 U. S., at 675; Anders v.
California, 386 U. S. 738, 741–743 (1967).

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the merit of that appeal. Whatever its strengths or weak-
nesses as a matter of policy, we cannot say that it fails to
afford indigents the adequate and effective appellate review
that the Fourteenth Amendment requires. A comparison of
the Wende procedure to the procedures evaluated in our
chief cases in this area makes this evident.
The Wende procedure is undoubtedly far better than those
procedures we have found inadequate. Anders itself, in dis-
approving the former California procedure, chiefly relied on
three precedents: Ellis v. United States, 356 U. S. 674 (1958)
(per curiam), Eskridge v. Washington Bd. of Prison Terms
and Paroles, 357 U. S. 214 (1958) (per curiam), and Lane v.
Brown, 372 U. S. 477 (1963). See Anders, 386 U. S., at 741–
743. Although we did not, in Anders, explain in detail why
the California procedure was inadequate under each of these
precedents, our particularly heavy reliance on Ellis makes
clear that a significant factor was that the old California pro-
cedure did not require either counsel or the court to deter-
mine that the appeal was frivolous; instead, the procedure
required only that they determine that the defendant was
unlikely to prevail on appeal. Compare Anders, supra, at
741–742 (“ ‘If counsel is convinced, after conscientious inves-
tigation, that the appeal is frivolous, of course, he may ask
to withdraw . . . . If the court . . . agrees with counsel’s
evaluation of the case, then leave to withdraw may be al-
lowed and leave to appeal may be denied’ ” (quoting Ellis,
supra, at 675)), with Anders, supra, at 743 (“We cannot say
that there was a finding of frivolity”). See also McCoy,
supra, at 437 (quoting same passage from Ellis that we
quoted in Anders). This problem also appears to have been
one of the flaws in the procedures at issue in Eskridge and
Lane. The former involved a finding only that there had
been “ ‘no grave or prejudicial errors’ ” at trial, Anders,
supra, at 742 (quoting Eskridge, supra, at 215), and the lat-
ter, a finding only that the appeal “ ‘would be unsuccessful,’ ”
Anders, supra, at 743 (quoting Lane, supra, at 482). Wende,

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by contrast, requires both counsel and the court to find the
appeal to be lacking in arguable issues, which is to say, frivo-
lous. See 25 Cal. 3d, at 439, 441–442, 600 P. 2d, at 1073, 1075;
see id., at 441, 600 P. 2d, at 1074 (reading Anders as finding
old California procedure deficient largely “because the court
itself did not make an express finding that the appeal was
frivolous”).
An additional problem with the old California procedure
was that it apparently permitted an appellate court to allow
counsel to withdraw and thereafter to decide the appeal
without appointing new counsel. See Anders, supra, at 740,
n. 2. We resolved any doubt on this point in Penson, where
we struck down a procedure that allowed counsel to with-
draw before the court had determined whether counsel’s
evaluation of the case was accurate, 488 U. S., at 82–83, and,
in addition, allowed a court to decide the appeal without
counsel even if the court found arguable issues, id., at 83
(stating that this latter flaw was the “[m]ost significan[t]”
one). Thus, the Penson procedure permitted a basic viola-
tion of the Douglas right to have counsel until a case is de-
termined to be frivolous and to receive a merits brief for a
nonfrivolous appeal. See 488 U. S., at 88 (“[I]t is important
to emphasize that the denial of counsel in this case left peti-
tioner completely without representation during the appel-
late court’s actual decisional process”); ibid. (defendant was
“entirely without the assistance of counsel on appeal”). Cf.
McCoy, supra, at 430–431, n. 1 (approving procedure under
which appellate court first finds appeal to be frivolous and
affirms, then relieves counsel). Under Wende, by contrast,
Douglas violations do not occur, both because counsel does
not move to withdraw and because the court orders briefing
if it finds arguable issues. See Wende, supra, at 442, n. 3,
600 P. 2d, at 1075, n. 3; see also, e. g., Rowland, 75 Cal. App.
3d, at 61–62, 88 Cal. Rptr. 2d, at 900–901.
In Anders, we also disapproved the old California proce-
dure because we thought that a one-paragraph letter from

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counsel stating only his “bare conclusion” that the appeal had
no merit was insufficient. 386 U. S., at 742. It is unclear
from our opinion in Anders how much our objection on this
point was severable from our objection to the lack of a find-
ing of frivolity, because we immediately followed our descrip-
tion of counsel’s “no merit” letter with a discussion of Ellis,
Eskridge, and Lane, and the lack of such a finding. See 386
U. S., at 742–743. In any event, the Wende brief provides
more than a one-paragraph “bare conclusion.” Counsel’s
summary of the case’s procedural and factual history, with
citations of the record, both ensures that a trained legal eye
has searched the record for arguable issues and assists the
reviewing court in its own evaluation of the case.
Finally, an additional flaw with the procedures in Eskridge
and Lane was that there was only one tier of review—by
the trial judge in Eskridge (who understandably had little
incentive to find any error warranting an appeal) and by the
public defender in Lane. See Anders, supra, at 742–743.
The procedure in Douglas itself was, in part, flawed for the
same reason. See 372 U. S., at 354–355. The Wende proce-
dure, of course, does not suffer from this flaw, for it provides
at least two tiers of review.
Not only does the Wende procedure far exceed those proce-
dures that we have found invalid, but it is also at least com-
parable to those procedures that we have approved. Turn-
ing first to the procedure we set out in the final section of
Anders, we note that it has, from the beginning, faced “ ‘con-
sistent and severe criticism.’ ” In re Sade C., 13 Cal. 4th
952, 979, n. 7, 920 P. 2d 716, 731, n. 7 (1996) (quoting Note, 67
Texas L. Rev. 181, 212 (1988)). One of the most consistent
criticisms, one with which we wrestled in McCoy, is that An-
ders is in some tension both with counsel’s ethical duty as an
officer of the court (which requires him not to present frivo-
lous arguments) and also with his duty to further his client’s
interests (which might not permit counsel to characterize his

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client’s claims as frivolous).11 California, through the Wende
procedure, has made a good-faith effort to mitigate this prob-
lem by not requiring the Wende brief to raise legal issues
and by not requiring counsel to explicitly describe the case
as frivolous. See Wende, 25 Cal. 3d, at 441–442, 600 P. 2d,
at 1074–1075.
Another criticism of the Anders procedure has been that
it is incoherent and thus impossible to follow. Those making
this criticism point to our language in Anders suggesting
that an appeal could be both “wholly frivolous” and at the
same time contain arguable issues, even though we also said
that an issue that was arguable was “therefore not frivo-
lous.” Anders, supra, at 744. 12 In other words, the Anders
procedure appears to adopt gradations of frivolity and to use
two different meanings for the phrase “arguable issue.”
The Wende procedure attempts to resolve this problem as
well, by drawing the line at frivolity and by defining argu-
able issues as those that are not frivolous.13
11 As one former public defender has explained, “an attorney confronted
with the Anders situation has to do something that the Code of Profes-
sional Responsibility describes as unethical; the only choice is as to which
canon he or she prefers to violate.” Pengilly, Never Cry Anders: The
Ethical Dilemma of Counsel Appointed to Pursue a Frivolous Criminal
Appeal, 9 Crim. Justice J. 45, 64 (1986). See also, e. g., Commonwealth v.
Moffett, 383 Mass. 201, 206, 418 N. E. 2d 585, 590 (1981) (Anders requires
a “Janus-faced approach” by counsel); Hermann, Frivolous Criminal Ap-
peals, 47 N. Y. U. L. Rev. 701, 711 (1972).
12 Justice Stewart, in his dissent in Anders, was the first to make this
criticism of the procedure set out by the Anders majority: “[I]f the record
did present any such ‘arguable’ issues, the appeal would not be frivolous.”
386 U. S., at 746; see id., at 746, n. See also, e. g., C. Wolfram, Modern
Legal Ethics 817 (1986) (“The Anders directives are confusing, if not
contradictory”).
13 See supra, at 279–280. A further criticism of Anders has been that
it is unjust. More particularly, critics have claimed that, in setting out
the Anders procedure, we were oblivious to the problem of scarce re-
sources (with regard to both counsel and courts) and, as a result, crafted
a rule that diverts attention from meritorious appeals of indigents and
ensures poor representation for all indigents. See, e. g., Pritchard, Auc-

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Finally, the Wende procedure appears to be, in some ways,
better than the one we approved in McCoy and, in other
ways, worse. On balance, we cannot say that the latter,
assuming, arguendo, that they outweigh the former, do so
sufficiently to make the Wende procedure unconstitutional.
The Wisconsin procedure we evaluated in McCoy, which
required counsel filing an Anders brief to explain why the
issues he raised in his brief lacked merit, arguably exac-
erbated the ethical problem already present in the Anders
procedure. The Wende procedure, as we have explained, at-
tempts to mitigate that problem. Further, it appears that
in the McCoy scheme counsel discussed—and the appellate
court reviewed—only the parts of the record cited by counsel
in support of the “arguable” issues he raised. See 486 U. S.,
at 440, 442. The Wende procedure, by contrast, requires a
more thorough treatment of the record by both counsel and
court. See 25 Cal. 3d, at 440–441, 600 P. 2d, at 1074–1075;
id., at 445, 600 P. 2d, at 1077 (Clark, J., concurring in judg-
tioning Justice: Legal and Market Mechanisms for Allocating Criminal Ap-
pellate Counsel, 34 Am. Crim. L. Rev. 1161, 1167–1168 (1997) (Anders has
created a “tragedy of the commons” that, “far from guaranteeing adequate
appellate representation for all criminal defendants, instead ensures that
indigent criminal defendants will receive mediocre appellate representa-
tion, whether their claims are good or bad” (footnote omitted)); Pritchard,
supra, at 1169 (noting Anders’ similar effect on appellate courts); Pritch-
ard, supra, at 1162 (“[J]udicial fiat cannot cure scarcity; it merely disguises
the symptoms of the disease”); Doherty, Wolf! Wolf!—The Ramifications
of Frivolous Appeals, 59 J. Crim. L., C. & P. S. 1, 2 (1968) (“[T]he people
who will suffer the most are the indigent prisoners who have been un-
justly convicted; they will languish in prison while lawyers devote time
and energy to hopeless causes on a first come-first served basis” (footnote
omitted)). We cannot say whether the Wende procedure is better or
worse than the Anders procedure in this regard (although we are aware
of policy-based arguments that it is worse as to appellate courts, see Peo-
ple v. Williams, 59 Cal. App. 4th 1202, 1205–1206, 69 Cal. Rptr. 2d 690,
692 (1997); Brief for Retired Justice Armand Arabian et al. as Amici Cu-
riae), but it is clear that, to the extent this criticism has merit, our holding
today that the Anders procedure is not exclusive will enable States to
continue to experiment with solutions to this problem.

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ment and dissenting in part). On the other hand, the McCoy
procedure, unlike the Wende procedure, does assist the re-
viewing court by directing it to particular legal issues; as to
those issues, this is presumably a good thing. But it is also
possible that bad judgment by the attorney in selecting the
issues to raise might divert the court’s attention from more
meritorious, unmentioned, issues. This criticism is, of
course, equally applicable to the Anders procedure. More-
over, as to the issues that counsel does raise in a McCoy
brief, the one-sided briefing on why those issues are frivolous
may predispose the court to reach the same conclusion. The
Wende procedure reduces these risks, by omitting from the
brief signals that may subtly undermine the independence
and thoroughness of the second review of an indigent’s case.
Our purpose is not to resolve any of these arguments.
The Constitution does not resolve them, nor does it require
us to do so. “We address not what is prudent or ap-
propriate, but only what is constitutionally compelled.”
Cronic, 466 U. S., at 665, n. 38. It is enough to say that the
Wende procedure, like the Anders and McCoy procedures,
and unlike the ones in Ellis, Eskridge, Lane, Douglas, and
Penson, affords adequate and effective appellate review for
criminal indigents. Thus, there was no constitutional viola-
tion in this case simply because the Wende procedure was
used.
IV
Since Robbins’ counsel complied with a valid procedure
for determining when an indigent’s direct appeal is frivolous,
we reverse the Ninth Circuit’s judgment that the Wende pro-
cedure fails adequately to serve the constitutional principles
we identified in Anders. But our reversal does not neces-
sarily mean that Robbins’ claim that his appellate counsel
rendered constitutionally ineffective assistance fails. For it
may be, as Robbins argues, that his appeal was not frivolous
and that he was thus entitled to a merits brief rather than
to a Wende brief. Indeed, both the District Court and the

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Opinion of the Court
Ninth Circuit found that there were two arguable issues on
direct appeal. The meaning of “arguable issue” as used in
the opinions below, however, is far from clear. The courts
below most likely used the phrase in the unusual way that
we used it in Anders—an issue arguably supporting the ap-
peal even though the appeal was wholly frivolous. See 152
F. 3d, at 1067 (discussing arguable issues in context of re-
quirements of Anders); App. 48 (District Court opinion)
(same). Such an issue does not warrant a merits brief. But
the courts below may have used the term to signify issues
that were “arguable” in the more normal sense of being non-
frivolous and thus warranting a merits brief. See id., at 49,
and n. 3 (District Court, considering arguable issues to de-
termine “whether Anders was violated,” but also defining
arguable issue as one that counsel could argue “in good faith
with some potential for prevailing”). Further, the courts
below, in determining whether there were arguable issues,
did not address petitioner’s argument that, at least with re-
gard to the adequacy of the prison law library, Robbins
waived the issue for appeal by failing to object at trial.
Thus, it will be necessary on remand to clarify just how
strong these two issues are.
On remand, the proper standard for evaluating Robbins’
claim that appellate counsel was ineffective in neglecting to
file a merits brief is that enunciated in Strickland v. Wash-
ington, 466 U. S. 668 (1984). See Smith v. Murray, 477 U. S.
527, 535–536 (1986) (applying Strickland to claim of attorney
error on appeal). Respondent must first show that his coun-
sel was objectively unreasonable, see Strickland, 466 U. S.,
at 687–691, in failing to find arguable issues to appeal—that
is, that counsel unreasonably failed to discover nonfrivolous
issues and to file a merits brief raising them. If Robbins
succeeds in such a showing, he then has the burden of demon-
strating prejudice. That is, he must show a reasonable
probability that, but for his counsel’s unreasonable failure to
file a merits brief, he would have prevailed on his appeal.

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286 SMITH v. ROBBINS
Opinion of the Court
See id., at 694 (defendant must show “a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different”).14
The applicability of Strickland’s actual-prejudice prong to
Robbins’ claim of ineffective assistance follows from Pen-
son, where we distinguished denial of counsel altogether on
appeal, which warrants a presumption of prejudice, from
mere ineffective assistance of counsel on appeal, which does
not. See 488 U. S., at 88–89. The defendant in Penson
faced a denial of counsel because, as we have discussed,
supra, at 280, not only was an invalid state procedure fol-
lowed, but that procedure was clearly invalid insofar as it
denied the defendant his right to appellate counsel under
Douglas, see 488 U. S., at 83, 88. Our holding in Penson
was consistent with Strickland itself, where we said that we
would presume prejudice when a defendant had suffered an
“[a]ctual or constructive denial of the assistance of counsel
altogether.” 466 U. S., at 692; see also Cronic, supra, at 659,
and n. 25. In other words, while we normally apply a
“strong presumption of reliability” to judicial proceedings
and require a defendant to overcome that presumption,
Strickland, supra, at 696, when, as in Penson, there has been
a complete denial of counsel, we understandably presume the
opposite, see Strickland, supra, at 692.
But where, as here, the defendant has received appellate
counsel who has complied with a valid state procedure for
determining whether the defendant’s appeal is frivolous, and
the State has not at any time left the defendant without
counsel on appeal, there is no reason to presume that the
defendant has been prejudiced. In Penson, we worried that
requiring the defendant to establish prejudice would leave
him “without any of the protections afforded by Anders.”
14 The performance component need not be addressed first. “If it is
easier to dispose of an ineffectiveness claim on the ground of lack of suffi-
cient prejudice, which we expect will often be so, that course should be
followed.” Strickland v. Washington, 466 U. S., at 697.

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488 U. S., at 86. Here, by contrast, counsel followed a proce-
dure that is constitutional under Anders and our other prece-
dents in this area, and Robbins therefore received all the
procedural protection that the Constitution requires. We
thus presume that the result of the proceedings on appeal is
reliable, and we require Robbins to prove the presumption
incorrect in his particular case. See Strickland, 466 U. S.,
at 694.
Further, the ineffective-assistance claim that Robbins
presses does not fall within any of the three categories of
cases, described in Strickland, in which we presume preju-
dice rather than require a defendant to demonstrate it.
First, as noted, we presume prejudice in a case of denial of
counsel. Second, “various kinds of state interference with
counsel’s assistance” can warrant a presumption of prejudice.
Id., at 692; see Cronic, 466 U. S., at 659, and n. 25. Third,
“prejudice is presumed when counsel is burdened by an ac-
tual conflict of interest,” Strickland, 466 U. S., at 692, al-
though in such a case we do require the defendant to show
that the conflict adversely affected his counsel’s performance,
ibid. None of these three categories applies to a case such
as Robbins’. Nor does the policy reason that we offered in
Strickland for the first two categories apply here, for it is
not the case that, if an attorney unreasonably chooses to fol-
low a procedure such as Anders or Wende instead of filing a
merits brief, prejudice “is so likely that case-by-case inquiry
into prejudice is not worth the cost.” 466 U. S., at 692; see
Cronic, supra, at 658. 15 On the contrary, in most cases in
which a defendant’s appeal has been found, pursuant to a
valid state procedure, to be frivolous, it will in fact be
frivolous.
It is no harder for a court to apply Strickland in this area
than it is when a defendant claims that he received ineffec-
15 Moreover, such an error by counsel is neither “easy to identify” (since
it is necessary to evaluate a defendant’s case in order to find the error)
nor attributable to the prosecution. See Strickland, supra, at 692.

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Opinion of the Court
tive assistance of appellate counsel because his counsel, al-
though filing a merits brief, failed to raise a particular claim.
It will likely be easier to do so. In Jones v. Barnes, 463
U. S. 745 (1983), we held that appellate counsel who files a
merits brief need not (and should not) raise every nonfrivo-
lous claim, but rather may select from among them in order
to maximize the likelihood of success on appeal. Notwith-
standing Barnes, it is still possible to bring a Strickland
claim based on counsel’s failure to raise a particular claim,
but it is difficult to demonstrate that counsel was incompe-
tent. See, e. g., Gray v. Greer, 800 F. 2d 644, 646 (CA7 1986)
(“Generally, only when ignored issues are clearly stronger
than those presented, will the presumption of effective as-
sistance of counsel be overcome”). With a claim that counsel
erroneously failed to file a merits brief, it will be easier for
a defendant-appellant to satisfy the first part of the Strick-
land test, for it is only necessary for him to show that a
reasonably competent attorney would have found one non-
frivolous issue warranting a merits brief, rather than show-
ing that a particular nonfrivolous issue was clearly stronger
than issues that counsel did present. In both cases, how-
ever, the prejudice analysis will be the same.16
16 Federal judges are, of course, fully capable of assessing prejudice in
this area, including for the very sorts of claims that Robbins has raised.
See, e. g., Duhamel v. Collins, 955 F. 2d 962, 967 (CA5 1992) (defendant
not prejudiced by appellate counsel’s failure to challenge sufficiency of the
evidence); Banks v. Reynolds, 54 F. 3d 1508, 1515–1516 (CA10 1995) (find-
ing both parts of Strickland test satisfied where appellate counsel failed
to raise claim of violation of Brady v. Maryland, 373 U. S. 83 (1963)); Cross
v. United States, 893 F. 2d 1287, 1290–1291, 1292 (CA11) (rejecting chal-
lenge to appellate counsel’s failure to raise claim of violation of Faretta v.
California, 422 U. S. 806 (1975), by determining that there was no preju-
dice), cert. denied, 498 U. S. 849 (1990). Since Robbins was convicted in
state court, we have no occasion to consider whether a per se prejudice
approach, in lieu of Strickland’s actual-prejudice requirement, might be
appropriate in the context of challenges to federal convictions where coun-
sel was deficient in failing to file a merits brief on direct appeal. See
Goeke v. Branch, 514 U. S. 115, 119 (1995) (per curiam) (distinguishing

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Stevens, J., dissenting
In sum, Robbins must satisfy both prongs of the Strick-
land test in order to prevail on his claim of ineffective assist-
ance of appellate counsel. The judgment of the Court of
Appeals is reversed, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
While I join Justice Souter’s cogent dissent without
qualification, I write separately to emphasize two points that
are obscured by the Court’s somewhat meandering explana-
tion of its sharp departure from settled law.
First, despite its failure to say so directly, the Court has
effectively overruled both Anders v. California, 386 U. S.
738 (1967), and Penson v. Ohio, 488 U. S. 75 (1988). Second,
its unexplained rejection of the reasoning underlying our
decision in McCoy v. Court of Appeals of Wis., Dist. 1, 486
U. S. 429 (1988), see ante, at 272–273, illustrates the extent
of today’s majority’s disregard for accepted precedent.
To make my first point it is only necessary to quote the
Court’s new standard for determining whether a State’s
appellate procedure affords adequate review for indigent
defendants:
“A State’s procedure provides such review so long as
it reasonably ensures that an indigent’s appeal will be
resolved in a way that is related to the merit of that
appeal.” Ante, at 276–277.
The California procedure reviewed in Anders and the Ohio
procedure reviewed in Penson—both found inadequate by
this Court—would easily have satisfied that standard. Yet
the Court today accepts California’s current procedure be-
rules established pursuant to this Court’s supervisory power to administer
federal court system from constitutional rules applicable to States);
United States v. Cronic, 466 U. S. 648, 665, n. 38 (1984) (same).

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290 SMITH v. ROBBINS
Stevens, J., dissenting
cause it “requires both counsel and the court to find the ap-
peal to be lacking in arguable issues.” Ante, at 280. But
in defense of its position in Anders, California relied heavily
on those very same requirements, i. e., “the additional fea-
ture of the [State’s] system where the court also reads the
full record.” Brief for Respondent in Anders v. California,
O. T. 1966, No. 98, pp. 30–31; see also id., at 12–13, 19, 23,
28–29. Our Anders decision held, however, that this “ad-
ditional feature” was insufficient to safeguard the indigent
appellant’s rights.
To make my second point I shall draw on my own experi-
ence as a practicing lawyer and as a judge. On a good many
occasions I have found that the task of writing out the rea-
sons that support an initial opinion on a question of law—
whether for the purpose of giving advice to my client or for
the purpose of explaining my vote as an appellate judge—
leads to a conclusion that was not previously apparent. Col-
leagues who shared that view of the importance of giving
reasons, as opposed to merely announcing conclusions, joined
the opinions that I authored in McCoy, Penson, and Nickols
v. Gagnon, 454 F. 2d 467 (CA7 1971).1 In its casual rejection
of the reasoning in McCoy, the Court simply ignores this
portion of the opinion:
“Wisconsin’s Rule merely requires that the attorney go
one step further. Instead of relying on an unexplained
assumption that the attorney has discovered law or facts
that completely refute the arguments identified in the
1 “The danger that a busy or inexperienced lawyer might opt in favor of
a one sentence letter instead of an effective brief in an individual marginal
case is real, notwithstanding the dedication that typifies the profession.
If, however, counsel’s ultimate evaluation of the case must be supported by
a written opinion ‘referring to anything in the record that might arguably
support the appeal,’ the temptation to discharge an obligation in summary
fashion is avoided, and the reviewing court is provided with meaningful
assistance.” Nickols, 454 F. 2d, at 470 (citation and footnotes omitted)
(quoting Anders v. California, 386 U. S. 738, 744 (1967)).

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brief, the Wisconsin court requires additional evidence
of counsel’s diligence. This requirement furthers the
same interests that are served by the minimum require-
ments of Anders. Because counsel may discover pre-
viously unrecognized aspects of the law in the process
of preparing a written explanation for his or her conclu-
sion, the discussion requirement provides an additional
safeguard against mistaken conclusions by counsel that
the strongest arguments he or she can find are frivolous.
Just like the references to favorable aspects of the rec-
ord required by Anders, the discussion requirement may
forestall some motions to withdraw and will assist the
court in passing on the soundness of the lawyer’s conclu-
sion that the appeal is frivolous.” McCoy, 486 U. S., at
442; see also Penson, 488 U. S., at 81–82.
In short, “simply putting pen to paper can often shed new
light on what may at first appear to be an open-and-shut
issue.” Id., at 82, n. 4. For this reason, the Court is quite
wrong to say that requiring counsel to articulate reasons for
its conclusion results in “less effective advocacy.” Ante, at
272. 2
An appellate court that employed a law clerk to review the
trial transcripts in all indigent appeals in search of arguable
error could be reasonably sure that it had resolved all of
those appeals “in a way that is related” to their merits. It
would not, however, provide the indigent appellant with any-
thing approaching representation by a paid attorney. Like
2 The Wende procedure at issue in this case requires a “summary of the
proceedings and facts,” but does not require counsel to raise any legal
issues. People v. Wende, 25 Cal. 3d 436, 438, 600 P. 2d 1071, 1072 (1979);
see also ante, at 265. This procedure plainly does not serve the above
purpose, since it does not force counsel to “put pen to paper” regarding
those things most relevant to an appeal—legal issues. Accordingly, and
contrary to the Court’s assertion, ante, at 280–281, this summary does not
improve upon the procedure rejected in Anders—a “bare conclusion” by
the attorney that an appeal is without merit. 386 U. S., at 742.

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292 SMITH v. ROBBINS
Souter, J., dissenting
California’s so-called Wende procedure, it would violate the
“principle of substantial equality” that was described in An-
ders and McCoy and has been a part of our law for decades.
McCoy, 486 U. S., at 438; Anders, 386 U. S., at 744.
Justice Souter, with whom Justice Stevens, Justice
Ginsburg, and Justice Breyer join, dissenting.
A defendant’s right to representation on appeal is limited
by the prohibition against frivolous litigation, and I realize
that when a lawyer’s corresponding obligations are at odds
with each other, there is no perfect place to draw the line
between them. But because I believe the procedure
adopted in People v. Wende, 25 Cal. 3d 436, 600 P. 2d 1071
(1979), fails to assure representation by counsel with the
adversarial character demanded by the Constitution, I
respectfully dissent.
I
Although the Sixth Amendment guarantees trial counsel
to a felony defendant, see Gideon v. Wainwright, 372 U. S.
335 (1963), the Constitution contains no similarly freestand-
ing, unconditional right to counsel on appeal, there being no
obligation to provide appellate review at all, see Ross v. Mof-
fitt, 417 U. S. 600, 606 (1974). When a State elects to provide
appellate review, however, the terms on which it does so are
subject to constitutional notice. See, e. g., Griffin v. Illinois,
351 U. S. 12, 18 (1956); Rinaldi v. Yeager, 384 U. S. 305, 310
(1966); Evitts v. Lucey, 469 U. S. 387, 393 (1985).
In a line of cases beginning with Griffin, this Court exam-
ined appellate procedural schemes under the principle that
justice may not be conditioned on ability to pay, see generally
Ross, supra, at 605–609. Even though “[a]bsolute equality
is not required,” Douglas v. California, 372 U. S. 353, 357
(1963), we held in Douglas that when state criminal defend-
ants are free to retain counsel for a first appeal as of right,

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Souter, J., dissenting
the Fourteenth Amendment 1 requires that indigent appel-
lants be placed on a substantially equal footing through the
appointment of counsel at the State’s expense. See McCoy
v. Court of Appeals of Wis., Dist. 1, 486 U. S. 429, 438 (1988)
(referring to “principle of substantial equality”).
Two services of appellate counsel are on point here. Ap-
pellate counsel examines the trial record with an advocate’s
eye, identifying and weighing potential issues for appeal.
This is review not by a dispassionate legal mind but by a
committed representative, pledged to his client’s interests,
primed to attack the conviction on any ground the record
may reveal. If counsel’s review reveals arguable trial error,
he prepares and submits a brief on the merits and argues
the appeal.
The right to the first of these services, a partisan scrutiny
of the record and assessment of potential issues, goes to the
irreducible core of the lawyer’s obligation to a litigant in an
adversary system, and we have consistently held it essential
to substantial equality of representation by assigned counsel.
“The paramount importance of vigorous representation fol-
lows from the nature of our adversarial system of justice.”
Penson v. Ohio, 488 U. S. 75, 84 (1988). See, e. g., Ellis v.
United States, 356 U. S. 674, 675 (1958) (per curiam); Doug-
las, supra, at 357–358; McCoy, supra, at 438. The right is
unqualified when a defendant has retained counsel, and I can
imagine no reason that it should not be so when counsel has
been appointed.
Because the right to the second service, merits briefing, is
not similarly unqualified, however, the issue we address
1 The Griffin line of cases has roots in both due process and equal protec-
tion, see M. L. B. v. S. L. J., 519 U. S. 102, 120 (1996), but we have noted
that “[m]ost decisions in this area have rested on an equal protection
framework . . . ,” Bearden v. Georgia, 461 U. S. 660, 665 (1983). See
also Ross v. Moffitt, 417 U. S. 600, 611 (1974) (noting that right to appel-
late counsel “is more profitably considered under an equal protection
analysis”).

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294 SMITH v. ROBBINS
Souter, J., dissenting
today arises. The limitation on the right to a merits brief
is that no one has a right to a wholly frivolous appeal, see
Anders v. California, 386 U. S. 738, 742 (1967), against which
the judicial system’s first line of defense is its lawyers.
Being officers of the court, members of the bar are bound
“not to clog the courts with frivolous motions or appeals,”
Polk County v. Dodson, 454 U. S. 312, 323 (1981); see also
McCoy, supra, at 436, and this is of course true regardless
of a lawyer’s retained or appointed status in a given case.
The problem to which Anders responds arises when counsel
views his client’s appeal as frivolous, leaving him duty
barred from pressing it upon a court.2
The rub is that although counsel may properly refuse to
brief a frivolous issue and a court may just as properly deny
leave to take a frivolous appeal, there needs to be some rea-
sonable assurance that the lawyer has not relaxed his parti-
san instinct prior to refusing,3 in which case the court’s
review could never compensate for the lawyer’s failure of
advocacy. A simple statement by counsel that an appeal has
no merit, coupled with an appellate court’s endorsement of
counsel’s conclusion, gives no affirmative indication that any-
one has sought out the appellant’s best arguments or champi-
oned his cause to the degree contemplated by the adversary
system. Nor do such conclusions acquire any implicit per-
2 Anders addressed the problem as confronted by assigned counsel,
though in theory it can be equally acute when counsel is retained. It is
unlikely to show up in practice, however. Paying clients generally can
fire a lawyer expressing unsatisfying conclusions and will often find a re-
placement with a keener eye for arguable issues or a duller nose for frivo-
lous ones. As a practical matter, the States may find it too difficult or
costly to prevent moneyed appellants from wasting their own resources,
and those of the judicial system, by bringing frivolous appeals. This does
not mean, however, that the States are obligated to subsidize such efforts
by indigents.
3 An assurance, that is, that he has not become what is known around
the Los Angeles County Jail as a “ ‘dumptruck.’ ” Reply Brief for Peti-
tioner 1.

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Souter, J., dissenting
suasiveness through exposure to an interested opponent’s
readiness to mount a challenge. The government is unlikely
to dispute or even test counsel’s evaluation; one does not be-
rate an opponent for giving up. To guard against the possi-
bility, then, that counsel has not done the advocate’s work of
looking hard for potential issues, there must be some prod
to find any reclusive merit in an ostensibly unpromising case
and some process to assess the lawyer’s efforts after the fact.
A judicial process that renders constitutional error invisible
is, after all, itself an affront to the Constitution. See Pen-
son, supra, at 81–82.
In Anders, we devised such a mechanism to ensure respect
for an appellant’s rights. See Penson, supra, at 80. A law-
yer’s request to withdraw on the ground that an appeal is
frivolous “must . . . be accompanied by a brief referring to
anything in the record that might arguably support the ap-
peal.” Anders, 386 U. S., at 744. This simply means that
counsel must do his partisan best, short of calling black
white, to flag the points that come closest to being appeal-
able; the lawyer’s job is to state the issues that give the
defendant his best chances to prevail, even if the best comes
up short under the rule against trifling with the court.
“[T]he court—not counsel—,” we continued, “then proceeds,
after a full examination of all the proceedings, to decide
whether the case is wholly frivolous.” Ibid.
Anders thus contemplates two reviews of the record, each
of a markedly different character. First comes review by
the advocate, the defendant’s interested representative.
His job is to identify the best issues the partisan eye can
spot. Then comes judicial review from a disinterested
judge, who asks two questions: whether the lawyer really
did function as a committed advocate, and whether he mis-
judged the legitimate appealability of any issue. In review-
ing the advocate’s work, the court is responsible for assuring
that counsel has gone as far as advocacy will take him with
the best issues undiscounted. We have repeatedly de-

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296 SMITH v. ROBBINS
Souter, J., dissenting
scribed the task of an appellate court in terms of this dual
responsibility. “ ‘First, [the court] must satisfy itself that
the attorney has provided the client with a diligent and thor-
ough search of the record for any arguable claim that might
support the client’s appeal. Second, it must determine
whether counsel has correctly concluded that the appeal is
frivolous.’ ” Penson, 488 U. S., at 83 (quoting McCoy, 486
U. S., at 442).
Griffin and Anders thus require significantly more than
the abstract evaluation of the merits of conceivably appeal-
able points. Without the assurance that assigned counsel
has done his best as a partisan, his substantial equality to a
lawyer retained at a defendant’s expense cannot be assumed.
And without the benefit of the lawyer’s statement of strong-
est claims, the appellate panel cannot act as a reviewing
court, but is relegated to an inquisitorial role.
It is owing to the importance of assuring that an adversar-
ial, not an inquisitorial, system is at work that I disagree
with the Court’s statement today that our cases approve of
any state procedure that “reasonably ensures that an indi-
gent’s appeal will be resolved in a way that is related to the
merit of that appeal.” Ante, at 276–277. A purely inquisi-
torial system could satisfy that criterion, and so could one
that appoints counsel only if the appellate court deems it
useful. But we have rejected the former and have explicitly
held the latter unconstitutional, see Douglas, 372 U. S., at
355, the reason in each case being that the Constitution looks
to the means as well as to the ends.4 See Singer v. United
States, 380 U. S. 24, 36 (1965) (“The Constitution recognizes
an adversary system as the proper method of determining
guilt . . .”). See also, e. g., Penson, supra, at 87 (“A criminal
appellant is entitled to a single-minded advocacy . . .”);
4 Of course, if appellate review is not constitutionally required, States
may well be able to impose nonadversarial review on all appellants. They
may not, however, reserve the adversary system for those able to afford
counsel.

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Souter, J., dissenting
Strickland v. Washington, 466 U. S. 668, 685 (1984) (“The
Sixth Amendment recognizes the right to the assistance of
counsel because it envisions counsel’s playing a role that is
critical to the ability of the adversarial system to reach just
results”); United States v. Cronic, 466 U. S. 648, 656 (1984)
(“Thus, the adversarial process protected by the Sixth
Amendment requires that the accused have ‘counsel acting
in the role of an advocate’ ”) (quoting Anders, supra, at 743).
II
We have not held the details of Anders to be exclusive,
but it does make sense to read the case as exemplifying what
substantial equality requires on behalf of indigent appellants
entitled to an advocate’s review and to reasonable certainty
that arguable issues will be briefed on their merits. With
Anders thus as a benchmark, California’s Wende procedure
fails to measure up. Its primary failing is in permitting
counsel to refrain as a matter of course from mentioning pos-
sibly arguable issues in a no-merit brief; its second deficiency
is a correlative of the first, in obliging an appellate court to
search the record for arguable issues without benefit of an
issue-spotting, no-merit brief to review. See 25 Cal. 3d, at
440–442, 600 P. 2d, at 1074–1075.
Although Wende assumes that counsel will act as an advo-
cate, see id., at 441–442, 600 P. 2d, at 1075, it fails to assure,
or even promote, the partisan attention that the Constitution
requires. While the lawyer must summarize the procedural
and factual history of the case with citations to the record,
nothing in the Wende scheme requires counsel to show af-
firmatively, subject to evaluation, that he has made the com-
mitted search for issues and the advocate’s assessment of
their merits that go to the heart of appellate representation
in our adversary system. It begs the question to say that
“[c]ounsel’s inability to find any arguable issues may readily
be inferred from his failure to raise any,” id., at 442, 600
P. 2d, at 1075, and it misses the point to argue that the

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298 SMITH v. ROBBINS
Souter, J., dissenting
indigent appellant is adequately protected because the law-
yer assigned to a case under California’s assigned counsel
scheme may not file a Wende brief without the approval of a
supervisor. The point is the need for some affirmative and
express indicator that an advocate has been at work, in the
form of a product that an appellate court can specifically re-
view.5 Thus Anders requires counsel to flag the best issues
for the sake of keeping counsel on his toes and giving focus
to judicial review of his judgment. Wende on the other hand
requires no indication of conceivable issues and hence noth-
ing specifically reviewable by a court bound to preserve the
system’s adversary character. Wende does no more to pro-
tect the indigent’s right to advocacy than the no-merit letter
condemned in Anders, or the conclusory statement disap-
proved in Penson.
On like reasoning, Wende is deficient in relying on a judge’s
nonpartisan review to assure that a defendant suffers no
prejudice at the hands of a lawyer who has failed to docu-
ment his best effort at partisan review. Exactly because
our system assumes that a lawyer committed to a client is
the most dependable guardian of the client’s interest, see
supra, at 296–297, we have consistently rejected procedures
leaving the determination of frivolousness to the court in the
first instance, see Douglas, supra, at 355–356, or to the court
following a conclusory declaration by counsel, see Penson,
supra, at 81–82, or to the court assisted by counsel in the role
of amicus curiae, see Ellis, 356 U. S., at 675. The defect in
these procedures is their entire reliance on review by a de-
tached magistrate who does not apply the partisan scrutiny
in the first instance that defendants with paid lawyers get as
a matter of course.
5 Since the state petitioner’s claims that the lawyer’s unrevealing and
conclusory certification has been approved by a superior are neither here
nor there on my analysis, I need not evaluate assertions by amicus Del-
gado that there is no scheme of assigned representation uniform through-
out the State, see Brief for Jesus Garcia Delgado as Amicus Curiae 8.

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Souter, J., dissenting
It goes without saying, too, that Wende’s reliance on
judges to start from scratch in seeking arguable issues adds
substantially to the burden on the judicial shoulders. While
I have no need to decide whether this drawback of the Wende
scheme is of constitutional significance, it raises questions
that certainly underscore the constitutional failing of relying
on judicial scrutiny uninformed by counsel’s partisan analy-
sis. In an amicus brief filed in this case, 13 retired justices
of the Supreme Court or Courts of Appeal of California have
pointed out the “risk that the review of the cold record
[under the Wende scheme] will be more perfunctory without
the issue-spotting guidance, and associated record citations,
of counsel.” Brief for Retired Justice Armand Arabian et al.
as Amici Curiae 5. The amici have candidly represented
that “[w]hen a California appellate court receives a Wende
brief, it assigns the case to a staff attorney who prepares a
memorandum analyzing all possible legal issues in the case.
Typically, the staff attorney then makes an oral presentation
to the appellate panel . . . .” Id., at 6. When the responsi-
bility of counsel is thrown onto the court, the court gives
way to a staff attorney; it could not be clearer that Wende is
seriously at odds with the respective obligations of counsel
and the courts as contemplated by the Constitution.
III
Unlike the Court, I reach the question of appropriate re-
lief. With respect to respondent’s Anders claim, the Court
of Appeals premised its disposition on finding that two po-
tentially meritorious issues showed that Robbins had been
prejudiced by the failure of the Wende scheme to result in
their litigation. I think it unnecessary to invoke such find-
ings, however, and would hold for Robbins simply because of
the failure to provide an advocate’s analysis of issues as a
predicate of court review. Without more, I would, in effect,
require the state courts to reinstate the appeal for treatment
consistent with the Anders application of Griffin.

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300 SMITH v. ROBBINS
Souter, J., dissenting
It is true, of course, that before relief is normally granted
for want of adequate assistance of trial counsel, a defendant
must show not only his lawyer’s failure to represent him
with reasonable competence (demonstrated here by the fail-
ure to file an advocate’s issue-spotting brief), but also a “rea-
sonable probability” that competent representation would
have produced a different result in his case, see Strickland,
466 U. S., at 694. But the assumption behind Strickland’s
prejudice requirement is that the defendant had a lawyer
who was representing him as his advocate at least at some
level, whereas that premise cannot be assumed when a de-
fendant receives the benefit of nothing more than a Wende
brief. In a Wende situation, nominal counsel is functioning
merely as a friend of the court, helping the judge to grasp
the structure of the record but not even purporting to high-
light the record’s nearest approach to supporting his client’s
hope to appeal. Counsel under Wende is doing less than the
judge’s law clerk (or a staff attorney) might do, and he is
doing nothing at all in the way of advocacy. When a lawyer
abandons the role of advocate and adopts that of amicus cu-
riae, he is no longer functioning as counsel or rendering as-
sistance within the meaning of the Sixth Amendment. See
Cronic, 466 U. S., at 654–655. Since the apparently missing
ingredient of the advocate’s analysis goes to the very essence
of the right to counsel, a lawyer who does nothing more than
file a Wende brief is closer to being no counsel at all than to
being subpar counsel under Strickland.
This, I think, is the answer to any suggestion that a spe-
cific assessment of prejudice need be shown in order to get
relief from Wende. A complete absence of counsel is a re-
versible violation of the constitutional right to representa-
tion, even when there is no question that at the end of the
day the smartest lawyer in the world would have watched
his client being led off to prison. See Cronic, supra, at 658–
659; cf. Rodriquez v. United States, 395 U. S. 327 (1969). We
do not ask how the defendant would have fared if he had

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Souter, J., dissenting
been given counsel, and we should not look to what sort of
appeal might have ensued if an appellant’s lawyer had
flagged the points that came closest to appealable issues.
Such a result is equally consistent with our cases holding a
violation of due process to be complete when a defendant is
denied a right to the appeal he is otherwise entitled to pur-
sue. See Peguero v. United States, 526 U. S. 23, 30–31 (1999)
(O’Connor, J., concurring); Rodriquez, supra, at 330. 6
This conclusion was anticipated in Penson, in which we
dealt with the violation of Anders standards when counsel
was allowed to withdraw without supplying the court with
his best effort to identify appealable weaknesses, and prior
to any judicial determination that counsel had missed noth-
ing in finding no arguable appellate issues in the record.
The appellate court in Penson subsequently identified argu-
able issues but thought the appointment of new counsel un-
necessary after finding that any legitimately appealable is-
sues would be losers. This Court recognized a presumption
of prejudice without more, for purposes of both Strickland
and Chapman v. California, 386 U. S. 18 (1967). See Pen-
son, 488 U. S., at 85–86. Although the state court’s failure
to appoint counsel after identifying issues made Penson an
egregious case, id., at 83, the failure of advocacy and conse-
quent constructive absence of counsel was clear even at the
point at which the lawyer withdrew, id., at 82, and the pre-
sumption of prejudice applicable then is applicable in this
case now.
There is practical sense as well as good theory behind this
presumption of prejudice, for any requirement to demon-
strate prejudice specifically would often place federal judges
on habeas in highly precarious positions calling for judg-
ments that state judges are generally better qualified to
6 Although this habeas proceeding began on February 24, 1994, and is
therefore not governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), see Lindh v. Murphy, 521 U. S. 320 (1997), the result
should be no different in a post-AEDPA case. See infra, at 303.

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302 SMITH v. ROBBINS
Souter, J., dissenting
make. Since there will have been no advocate’s help in ana-
lyzing the record on the direct state appeal, and since counsel
may well have been absent formally as well as constructively
in any state postconviction proceedings, the federal judge
would be looking for (among other things) previously uniden-
tified state-law issues not previously waived. One could not
ask for a more certain guarantee of inefficient and time con-
suming judicial effort.7
What remains is only to say a word about the State’s argu-
ment that relief in this case is barred under Teague v. Lane,
489 U. S. 288 (1989), as requiring application of a new rule of
law not clearly entailed by our prior holdings. The argu-
ment seems to be that California has relied on Wende for so
long that any disapproval from a federal court at this junc-
ture is some sort of novelty (resulting from the failure of
other state defendants to reach the federal courts earlier
with Wende objections). The obvious answer is that the ap-
plication of Douglas and Griffin standards to meritless ap-
peals has been subject to repeated explanation starting with
Anders and echoed in McCoy and Penson. Once general
rules are announced they do not become “new” again with
every particular violation that may subsequently occur. See
Saffle v. Parks, 494 U. S. 484, 491–492 (1990) (discussing ap-
plication of the rule of Jurek v. Texas, 428 U. S. 262 (1976),
7 Since a Wende case is like a denial of counsel, it would make no more
sense to give the State an option to demonstrate no prejudice under Chap-
man v. California, 386 U. S. 18 (1967), or Brecht v. Abrahamson, 507 U. S.
619 (1993), than it would to require a defendant to show it under Strick-
land v. Washington, 466 U. S. 668 (1984). The presumption of prejudice
does not, however, promise relief to every California defendant whose ap-
peal was dismissed as frivolous and against whom the statute of limita-
tions has not run, see 28 U. S. C. § 2244(d)(1) (1994 ed., Supp. III). One
submission before us claims that the Wende scheme has not supplanted
Anders v. California, 386 U. S. 738 (1967), throughout California. See
Brief for Jesus Garcia Delgado as Amicus Curiae 9–10. Briefs that meas-
ure up according to the standards adumbrated in Anders would of course
receive standard Strickland analysis.

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Souter, J., dissenting
in Penry v. Lynaugh, 492 U. S. 302 (1989)). The same point,
of course, would answer any objection under the AEDPA
that an Anders petitioner was seeking to go beyond “clearly
established Federal law, as determined by the Supreme
Court of the United States,” 28 U. S. C. § 2254(d)(1) (1994 ed.,
Supp. III).
* * *
The Wende procedure does not assure even the most mini-
mal assistance of counsel in an adversarial role. The Consti-
tution demands such assurances, and I would hold Robbins
entitled to an appeal that provides them.