528 U.S. 259120 S.Ct. 746145 L.Ed.2d 756
GEORGE SMITH, WARDEN, PETITIONERv.LEE ROBBINS
No. 98-1037.
Supreme Court of the United States
Argued October 5, 1999
Decided January 19, 2000

Syllabus
An attorney appointed to represent an indigent defendant on appeal may conclude  that an appeal would be frivolous and request 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 , this Court found that, in order  to protect a defendant's constitutional 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  procedure 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 assessment, 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 counsel'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 Robbins's appeal and finding that his counsel's failure  to include them in his brief deviated from the Anders procedure and thus  amounted to deficient performance by counsel. Rather than requiring Robbins to  prove prejudice from this deficiency, the court applied a presumption of  prejudice. The Ninth Circuit agreed, concluding that Anders, together with  Douglas v. California , 372 U. S. 353 --which held that States must provide  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 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 Constitution'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. 6-13.
(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 following 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 choosing to create appellate review. Comparing the California  procedure to other procedures that this Court had found invalid and to statutory  requirements 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. 6-9.
(b) The Ninth Circuit erred in finding that Anders' s 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 independent 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.  Similarly, in Penson v. Ohio, 488 U. S. 75 , the Court described Anders as  simply erecting safeguards. Finally, any view of the procedure described in  Anders' s 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 requirements of the Fourteenth Amendment, to  experiment with solutions to difficult policy problems. See e.g., Griffin ,  supra. The Court, because 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. Director, Mo. Dept. of  Health, 497 U. S. 261 ( O'Connor, J., concurring). Pp. 9-13.


1
2. California's Wende procedure does not violate the Fourteenth Amendment.  Pp. 13-22.


2
(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 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. In determining whether a particular procedure  satisfies 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 State to "protect itself so that frivolous appeals are not subsidized  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 frivolous appeal and, concomitantly, does  not include the right to counsel for bringing a frivolous appeal. Anders 's  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. 14-16.


3
(b) The Wende procedure reasonably ensures that an indigent's appeal  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. 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 appellate court to allow counsel to withdraw and then decide the  appeal without appointing new counsel. Such a procedure was struck down in  Penson v. Ohio, 488 U. S. 75 , 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 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. 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. 16-19.


4
(c) The Wende procedure is also at least comparable to those  procedures 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 requirement 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 defining 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 arguments. 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 Anders and McCoy procedures , and unlike  the ones in, e.g., Douglas and Penson, affords adequate and effective appellate  review for criminal indigents. Pp. 19-22.


5
3. This case is remanded for the Ninth Circuit to evaluate Robbins's  ineffective-assistance claim. It may be that his appeal was not frivolous 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's 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 received 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 categories of cases in which prejudice is presumed, for  it does not involve the complete denial of counsel on appeal, state interference  with counsel's assistance, or an actual conflict of interest on his counsel's  part. Id., at 692, 694. Pp. 22-27.


6
152 F. 3d 1062, reversed and remanded.


7
On writ of certiorari to the united states court of  appeals for the ninth circuit


8
T homas, 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. Souter, J., filed a dissenting opinion,  in which Stevens, Ginsburg, and Breyer, JJ., joined.


9
Justice Thomas delivered the opinion of the Court.


10
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 defendants' 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  inadequate 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  conclusion following a review of the record. We went on to set 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  procedure we sketched in Anders is a prophylactic one; the States are free to  adopt different procedures, so long as those procedures adequately safeguard a  defendant's right to appellate counsel.


11
* A


12
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 reviewed the record, explained his evaluation of the case to his  client, provided the client with a copy of the brief, and informed the client of  his right to file a pro se supplemental brief. He further requests that the  court independently examine the record for arguable issues. Unlike under the  Anders 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, 1072,  1074-1075.


13
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 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., concurring 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  cocounsel"). If the appellate court, after its review of the record 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.  , nonfrivolous) issue, it orders briefing on that issue. Id ., at 442, n. 3, 600  P. 2d, at 1075, n. 3.1

B

14
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 committing the murder). Robbins was sentenced to 17 years to life. He  elected to represent himself at trial, but on appeal he received appointed  counsel. His appointed counsel, concluding that an appeal would be frivolous,  filed with the California 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.


15
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  responsibilities 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's petition for review.


16
After exhausting state postconviction remedies, Robbins filed in the United  States District Court for the Central District 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 addition, 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 , 368 U. S., at 744 . Anders 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 support the appeal," ibid .


17
The District Court agreed with Robbins's last claim, concluding 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 Robbins's needs  in preparing his defense after he elected to dismiss 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 procedure, these issues "might arguably" have "support[ed] the appeal,"  App. 51, n. 6 (citing Anders ), and thus that Robbins's 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 performance by  counsel. In addition, rather than requiring Robbins to show that he suffered  prejudice from this deficient 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.


18
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. California , 372 U. S. 353 (1963), which held that  States must provide appointed counsel to indigent criminal defendants on appeal,  "set forth the exclusive procedure through which appointed counsel's performance  can pass constitutional muster." 152 F. 3d 1062, 1066 (1998). Rejecting  petitioner's argument 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 requires, 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 certiorari. 526 U. S. 1003 (1999).

II

19
* In Anders , we reviewed an earlier California procedure for handling  appeals by convicted indigents. Pursuant to that procedure, Anders's appointed  appellate counsel had filed a letter stating that he had concluded that there  was "no merit to the appeal," Anders , 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 prejudicial error). People v. Anders , 167 Cal. App. 2d 65, 333 P. 2d 854  (1959). Anders thereafter sought a writ of habeas corpus from the State Court of  Appeal, which denied relief, explaining 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).


20
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 indigents 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:


21
" ` If counsel is convinced, after conscientious investigation, 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).


22
In Anders , neither counsel, the state appellate court on direct appeal, nor the  state habeas courts had made any finding of frivolity.6   We concluded that a  finding that the appeal had "no merit" was not adequate, because it did not mean  that the appeal was so lacking in prospects as to be "frivolous": "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 .


23
Having rejected the California procedure, we proceeded, in a final,  separate section, to set out what would be an acceptable procedure for treating  frivolous appeals:


24
"[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 request must, however, be accompanied by a brief referring to  anything in the record that might arguably support 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  dismiss the appeal insofar as federal requirements are concerned, or proceed  to a decision on the merits, if state law so requires. On the other hand, it  if finds any of the legal points arguable on their merits (and therefore not  frivolous) it must, prior to decision, afford the indigent the assistance of  counsel to argue the appeal." Id ., at 744.


25
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  because of the ready references not only to the record but also to the legal  authorities as furnished it by counsel." Id., at 745.

B

26
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.


27
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 ethical 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 obligation 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 Wisconsin  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 , describe the procedure at issue as going "one step  further" than Anders , McCoy , supra , at 442, thus suggesting that Anders might  set a mandatory minimum, but we think this description 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 Wisconsin  procedure, by providing for one-sided briefing by counsel against his own  client's best claims, probably made a court more likely to rule against the  indigent than if the court had simply received an Anders brief.


28
In Pennsylvania v. Finley, 481 U. S. 551 (1987), we explained that the  Anders procedure is not "an independent constitutional command," but rather is  just "a prophylactic framework" that we established to vindicate the  constitutional 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 Constitution itself does not compel the Anders procedure, we suggested  otherwise. Similarly, in Penson v. Ohio , 488 U. S. 75 (1988), we described  Anders as simply erecting "safeguards." 488 U. S., at 80 .


29
It is true that in Penson we used some language suggesting 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 18. Further, counsel's action in  Penson was closely analogous 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").


30
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 problems of policy. In Griffin v.  Illinois , 351 U. S. 12 (1956), which we invoked as the foundational case for  our holding in Anders , see Anders , 386 U. S., at 741 , we expressly disclaimed  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's 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 subsidized and public moneys not needlessly spent."  Griffin, 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, explaining 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.


31
In a related context, we stated this basic principle of federalism 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:


32
"If the Constitution gave me a roving commission to impose upon the  criminal courts of Texas my own notions of enlightened policy, I would not  join the Court's opinion. . . . [But] [t]he question is whether those  procedures fall below the minimum level the Fourteenth Amendment will  tolerate. Upon that question, I am constrained to join the opinion and  judgment of the Court." 385 U. S., at 569 (concurring opinion).


33
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 implement programs to aid  prisoners seeking to secure postconviction 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 particular federal model in  [postconviction] proceedings. . . . States [have] considerable discretion"); id  ., at 14 ( Kennedy , J., concurring in judgment) ("[J]udicial imposition of a  categorical remedy ... might pretermit other responsible solutions being  considered in Congress and state legislatures"). Although Finley and Murray  involved postconviction proceedings (in which there is no constitutional right  to counsel) rather than direct appeal, we think, as the language of Griffin  suggests, that the principle is the same in both contexts. For in Griffin , as  here, there was an underlying constitutional right at issue.


34
In short, it is more in keeping with our status as a court, and  particularly with our status as a court in a federal system, 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 cavalierly  "imped[e] the States' ability to serve as laboratories for testing solutions to  novel legal problems." Arizona v. Evans, 514 U. S. 1, 24 (1995) ( Ginsburg , J.,  dissenting). Accordingly, 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 confident, will--craft procedures that, in  terms of policy, are superior to, or at least as good as, that in Anders . The  Constitution erects no barrier to their doing so.7

III

35
Having determined that California's Wende procedure is not unconstitutional  merely because it diverges from the Anders 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 `adequate and effective,' " Evitts v. Lucey , 469 U. S. 387, 392  (1985) (quoting Griffin , 351 U. S., at 20 (plurality opinion)).


36
* As we have admitted on numerous occasions, "[t]he precise 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  Amendment and some from the Due Process Clause of that Amendment.' " 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 "afford adequate and  effective appellate review to indigent defendants," Griffin , 351 U. S., at 20  (plurality opinion). 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.8   See id ., at 17-18 (plurality 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 imposed "differentiations . . . that have no relation to a  rational policy of criminal appeal"); Douglas , 372 U. S., at 357 (decision 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 distinctions"); Evitts, supra, at 404 (law in  Griffin "decided the appeal in a way that was arbitrary with respect to the  issues involved"). Compare Finley , 481 U. S., at 556 ("The equal protection  guarantee ... only ... assure[s] the indigent defendant 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 opportunity to obtain an  adjudication on the merits of his appeal" (discussing Griffin and Douglas )).9          In determining whether a particular state procedure satisfies 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 State to "protect itself so that frivolous appeals are not subsidized 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 appeal 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 effective assistance of counsel when trial counsel refuses to  violate ethical duty not to assist his client in presenting perjured testimony).  To put the point differently, an indigent defendant who has his appeal dismissed  because it is frivolous has not been deprived of "a fair opportunity" to bring  his appeal, Evitts, supra, at 405; see Finley, supra, 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 itself,  see Penson , 488 U. S., at 83 -84; McCoy, supra, at 444, and we do not retreat  from that goal today.

B

37
We think the Wende procedure reasonably ensures that an indigent's appeal  will be resolved in a way that is related to the merit of that appeal. Whatever  its strengths or weaknesses 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.


38
The Wende procedure is undoubtedly far better than those procedures we have  found inadequate. Anders itself, in disapproving the former California  procedure, chiefly relied on three precedents: Ellis v. United States, 356 U. S.  674 (1958), 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 procedure did not require either counsel or the court to  determine 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 investigation, 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 allowed 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 latter, a finding only that the appeal " `would be  unsuccessful,' " Anders, supra, at 743 (quoting Lane , supra , at 482). Wende ,  by contrast, requires both counsel and the court to find the appeal to be  lacking in arguable issues, which is to say, frivolous. 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").


39
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 withdraw 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 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. See 488  U. S., at 88 ("[I]t is important to emphasize that the denial of counsel in this  case left petitioner completely without representation during the appellate  court's actual decisional process"); ibid . (defendant was "entirely without the  assistance of counsel on appeal"). Cf. McCoy , 486 U. S., 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.


40
In Anders , we also disapproved the old California procedure because we  thought that a one paragraph letter from 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 finding of frivolity, because  we immediately followed our description 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.


41
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 Douglas , 372 U.  S., at 354 -355. The Wende procedure, of course, does not suffer from this flaw,  for it provides at least two tiers of review.


42
Not only does the Wende procedure far exceed those procedures that we have  found invalid, but it is also at least comparable to those procedures that we  have approved. Turning first to the procedure we set out in the final section of  Anders , we note that it has, from the beginning, faced " `consistent 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 Anders is  in some tension both with counsel's ethical duty as an officer of the court  (which requires him not to present frivolous arguments) and also with his duty  to further his client's interests (which might not permit counsel to  characterize his client's claims as frivolous).11   California, through the  Wende procedure, has made a good-faith effort to mitigate this problem 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.


43
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 frivolous." 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 arguable issues as those that are not frivolous.13


44
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  exacerbated the ethical problem already present in the Anders procedure. The  Wende procedure, as we have explained, attempts 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 Wende , 25 Cal. 3d, at 440-441, 600 P. 2d, at  1074-1075; id ., at 445, 600 P. 2d, at 1077 (Clark, J., concurring in judgment  and dissenting in part). On the other hand, the McCoy procedure, unlike the  Wende procedure, does assist the reviewing 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.  Moreover, 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.


45
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 appropriate, 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 violation in this case  simply because the Wende procedure was used.

IV

46
Since Robbins's 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 procedure fails adequately to serve the constitutional  principles we identified in Anders . But our reversal does not necessarily mean  that Robbins's 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 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 appeal even though the appeal was wholly frivolous. See  152 F. 3d, at 1067 (discussing arguable issues in context of requirements 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 nonfrivolous and  thus warranting a merits brief. See App. 49, and n. 3 (District Court,  considering arguable issues to determine "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 regard 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.


47
On remand, the proper standard for evaluating Robbins's claim that  appellate counsel was ineffective in neglecting to file a merits brief is that  enunciated in Strickland v. Washington, 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 counsel 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 demonstrating 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. See 466  U. S., at 694 (defendant must show "a reasonable probability that, but for  counsel's unprofessional errors, the result of the proceeding would have been  different").14


48
The applicability of Strickland 's actual-prejudice prong to Robbins's  claim of ineffective assistance follows from Penson , 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 18, not only was an invalid state  procedure followed, 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.


49
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 ." 488 U. S., at 86 . Here, by contrast, counsel followed a procedure  that is constitutional under Anders and our other precedents 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 .


50
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 prejudice 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 actual conflict  of interest," Strickland , 466 U. S., at 692 , although 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's. 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 follow 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.


51
It is no harder for a court to apply Strickland in this area than it is  when a defendant claims that he received ineffective assistance of appellate  counsel because his counsel, although 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 nonfrivolous claim, but rather may select from  among them in order to maximize the likelihood of success on appeal.  Notwithstanding 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 incompetent. 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 assistance 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  Strickland test, for it is only necessary for him to show that a reasonably  competent attorney would have found one nonfrivolous issue warranting a merits  brief, rather than showing that a particular nonfrivolous issue was clearly  stronger than issues that counsel did present. In both cases, however, the  prejudice analysis will be the same.16


52
In sum, Robbins must satisfy both prongs of the Strickland test in order to  prevail on his claim of ineffective assistance of appellate counsel. The  judgment of the Court of Appeals is reversed, and the case is remanded for  further proceedings consistent with this opinion.


53
It is so ordered.



NOTES


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 contractual  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 project]." People v.  Hackett, 36 Cal. App. 4th 1297, 1311, 43 Cal. Rptr. 2d 219, 228 (1995).


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 respondent's  habeas petition, since he filed his petition before that Act's effective date of  April 24, 1996. See Lindh v. Murphy , 521 U. S. 320 (1997).


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 (1999), cert. pending, No.  98-1427; Davis v. Kramer , 167 F. 3d 494, 496, 497-498, stay granted pending  disposition of pet. for cert., 527 U. S. -- (1999).


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 erroneous as to  constitute probable error.' ... Where, as here, there was a fairly arguable  question, counsel should have proceeded to present argument"), vacated and  remanded, 356 U. S. 674 (1958) (per curiam).


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); Arizona v. Clark , -- P. 2d  --, No. 1 CA-CR 97-0673, 1999 WL 21250,  ; ;25-38 (Ariz. App., Jan. 19, 1999).


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 counsel 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).


10
  This distinction gives meaning to our previous emphasis on an indigent  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 attorney, 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).


11
  As one former public defender has explained, "an attorney confronted with the  Anders situation has to do something that the Code of Professional  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 Appeals, 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 17-18. 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 resources (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, Auctioning Justice: Legal and Market  Mechanisms for Allocating Criminal Appellate 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 representation, whether their claims are good or bad" (footnote  omitted)); Pritchard, supra, at 1169 (noting Anders 's similar effect on  appellate courts); Pritchard, 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 unjustly 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 People 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 Curiae ), 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.


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 sufficient  prejudice, which we expect will often be so, that course should be followed."  Strickland v. Washington , 466 U. S. 668, 697 (1984).


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.


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) (finding 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 challenge 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 prejudice), 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 counsel 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 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).



54
Justice Stevens , with whom Justice Ginsburg joins, dissenting.


55
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 explanation of its sharp departure from settled law.


56
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 9-10, illustrates  the extent of today's majority's disregard for accepted precedent.


57
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:


58
"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 14.


59
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 because it  "requires both counsel and the court to find the appeal to be lacking in  arguable issues." Ante , at 17. But in defense of its position in Anders ,  California relied heavily on those very same requirements, i.e., "the additional  feature 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 "additional feature" was insufficient to safeguard the indigent appellant's  rights.


60
To make my second point I shall draw on my own experience as a practicing  lawyer and as a judge. On a good many occasions I have found that the task of  writing out the reasons 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. Colleagues 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:


61
"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  brief, the Wisconsin court requires additional evidence of counsel's  diligence. This requirement furthers the same interests that are served by the  minimum requirements of Anders . Because counsel may discover previously  unrecognized aspects of the law in the process of preparing a written  explanation for his or her conclusion, 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 record 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 conclusion that the appeal is  frivolous." McCoy , 486 U. S., at 442 ; see also Penson, 488 U. S., at 81 -82.


62
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 10.2


63
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 anything approaching representation by a paid attorney. Like California's  so-called Wende procedure, it would violate the "principle of substantial  equality" that was described in Anders and McCoy and has been a part of our law  for decades. McCoy , 486 U. S., at 438 ; Anders , 386 U. S., at 744 .



NOTES:


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)).


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 2. 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 18-19, 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 .



64
Justice Souter , with whom Justice Stevens, Justice Ginsburg, and Justice  Breyer join, dissenting.


65
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.


66
* 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 freestanding, unconditional right to counsel on appeal,  there being no obligation to provide appellate review at all, see Ross v.  Moffitt , 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).


67
In a line of cases beginning with Griffin , this Court examined 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 defendants are free to retain counsel  for a first appeal as of right, the Fourteenth Amendment1   requires that  indigent appellants 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").


68
Two services of appellate counsel are on point here. Appellate 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.


69
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 follows 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); Douglas,  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.


70
Because the right to the second service, merits briefing, is not similarly  unqualified, however, the issue we address 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


71
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 reasonable assurance that the lawyer has not relaxed his  partisan 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 anyone  has sought out the appellant's best arguments or championed his cause to the  degree contemplated by the adversary system. Nor do such conclusions acquire any  implicit persuasiveness 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 berate an opponent for giving up. To guard  against the possibility, 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 Penson,  supra , at 81-82.


72
In Anders , we devised such a mechanism to ensure respect for an  appellant's rights. See Penson, supra , at 80. A lawyer'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 appeal."  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 appealable; 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.


73
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 misjudged the legitimate appealability of any issue. In reviewing  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 described 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 thorough 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 ).


74
Griffin and Anders thus require significantly more than the abstract  evaluation of the merits of conceivably appealable 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 strongest claims, the appellate panel  cannot act as a reviewing court, but is relegated to an inquisitorial role.


75
It is owing to the importance of assuring that an adversarial, 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 indigent's appeal will be resolved in a way that is related to the merit  of that appeal." Ante , at 14. A purely inquisitorial 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 ..."); 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

76
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 possibly 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.


77
Although Wende assumes that counsel will act as an advocate, 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 affirmatively, subject to  evaluation, that he has made the committed 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  indigent appellant is adequately protected because the lawyer 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 review.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 nothing specifically  reviewable by a court bound to preserve the system's adversary character. Wende  does no more to protect the indigent's right to advocacy than the no-merit  letter condemned in Anders , or the conclusory statement disapproved in Penson .


78
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 document 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 6, 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 , 488 U. S., 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  detached magistrate who does not apply the partisan scrutiny in the first  instance that defendants with paid lawyers get as a matter of course.


79
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 analysis. 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 ... ." Brief for Retired Justice Arabian,  supra, at 6. When the responsibility 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

80
Unlike the Court, I reach the question of appropriate relief. With respect  to respondent's Anders claim, the Court of Appeals premised its disposition on  finding that two potentially 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 findings, 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.


81
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 failure to file an advocate's issue-spotting brief), but also a  "reasonable 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 defendant 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 highlight 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 curiae , he is no longer functioning as  counsel or rendering assistance 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 .


82
This, I think, is the answer to any suggestion that a specific assessment  of prejudice need be shown in order to get relief from Wende . A complete  absence of counsel is a reversible violation of the constitutional right to  representation, 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 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 pursue. See Peguero v. United States , 526 U. S. 23,  30-31 (1999) ( O'Connor, J., concurring); Rodriquez, supra , at 330.6


83
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 nothing in finding  no arguable appellate issues in the record. The appellate court in Penson  subsequently identified arguable issues but thought the appointment of new  counsel unnecessary after finding that any legitimately appealable issues 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  Penson , 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 consequent constructive absence of counsel was clear  even at the point at which the lawyer withdrew, id., at 82, and the presumption  of prejudice applicable then is applicable in this case now.


84
There is practical sense as well as good theory behind this presumption of  prejudice, for any requirement to demonstrate prejudice specifically would often  place federal judges on habeas in highly precarious positions calling for  judgments that state judges are generally better qualified to make. Since there  will have been no advocate's help in analyzing the record on the direct state  appeal, and since counsel may well have been absent formally as well as  constructively in any state post-conviction proceedings, the federal judge would  be looking for (among other things) previously unidentified state law issues not  previously waived. One could not ask for a more certain guarantee of inefficient  and time consuming judicial effort.7


85
What remains is only to say a word about the State's argument 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  argument seems to be that California has relied on Wende for so long that any  disapproval from a federal court at this juncture 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  application of Douglas and Griffin standards to meritless appeals 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 application of the rule of Jurek v.  Texas , 428 U. S. 262 (1976), 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) .


86
* * *


87
The Wende procedure does not assure even the most minimal assistance of  counsel in an adversarial role. The Constitution demands such assurances, and I  would hold Robbins entitled to an appeal that provides them.



NOTES:


1
  The Griffin line of cases has roots in both due process and equal protection,  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 appellate counsel "is more  profitably considered under an equal protection analysis").


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 replacement with a keener eye for  arguable issues or a duller nose for frivolous ones. As a practical matter, the  States may find it too difficult or costly to prevent monied 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 Petitioner 1.


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.


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 Delgado that  there is no scheme of assigned representation uniform throughout the State, see  Brief for Jesus Garcia Delgado as Amicus Curiae 8 .


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 12-13.


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 Chapman v. Calfornia  , 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 Strickland v. Washington, 466 U.  S. 668 (1984). The presumption of prejudice does not, however, promise relief to  every California defendant whose appeal was dismissed as frivolous and against  whom the statute of limitations 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 measure up  according to the standards adumbrated in Anders would of course receive standard  Strickland analysis.


