Discussion This case raises an issue of first impression, since following our decisions in Lombard v. Lynaugh, 868 F.2d 1475 (5th Cir. 1989) and Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990) we have not resolved the issue of whether an indigent criminal defendant is effectively denied assistance of appellate counsel when counsel files only an "errors patent" brief and then withdraws from the case pursuant to Anders, not identifying any arguable issues for appeal but only stating that the appeal is meritless. This question is presented in a context whereby Harris submitted pro se assignments of error.
We have previously held that a defendant is constructively denied effective assistance of counsel where counsel on direct appeal filed a brief asserting no grounds for appeal and requesting only a review of the record for patent errors. See Lofton v. Whitley, 905 F.2d 885 (5th Cir. 1990); Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir. 1989). Here, counsel did not file an Anders brief or seek to withdraw from representation.
We agree with the district court that this was the functional equivalent of withdrawing from representation without complying with the requirements of Anders. See Lofton v. Whitley, 905 F.2d 885, 888 (5th Cir. 1990) ("Lofton may have been formally represented by counsel, but the failure to raise any grounds for appeal was the equivalent of his attorney's withdrawal."); see also Lombard v. Lynaugh, 868 F.2d 1475,1480 (5th Cir. 1989) (finding constructive denial of counsel where attorney "did nothing to attempt to aid Lombard's appeal beyond the initial perfecting of the appeal itself."). In Penson, the Court considered the consequences of an attorney's withdrawal from representation without filing a sufficient brief as required by Anders.
We express no view as to whether a defendant in Blankenship's circumstance has the right to effective counsel to oppose the state's request for such discretionary review. See Penson v. Ohio, 488 U.S. 75, 88 (1988) ("Because the fundamental importance of the assistance of counsel does not cease as the prosecutorial process moves from the trial to the appellate stage, the presumption of prejudice must extend as well to the denial of counsel on appeal.") (citation omitted); Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir. 1989). Lantrip did nothing whatsoever in the review by the Court of Criminal Appeals.
Further, this representation must be effective. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Lombard v. Lynaugh, 868 F.2d 1475, 1481 (5th Cir. 1989). The appeal at issue here was from the district court to this Court, and thus was one of right; as a consequence, Guerra was constitutionally entitled to effective appellate counsel.
Penson, 109 S.Ct. at 353. This circuit addressed the issue of what type of claim was presented when counsel files a "no merit brief in Lombard v. Lynaugh, 868 F.2d 1475, 1477 (5th Cir. 1989). The no merit brief filed in Lombard was similar to the brief filed in this case.
But where an attorney seeks to withdraw pursuant to invalid procedures, actually or constructively denying counsel to the appellant, prejudice should be presumed. Marshall v. Schriro, 219 Fed. Appx. 689, 691 (9th Cir. 2006) ("[B]ecause Penson remains good law, prejudice may be presumed if an invalid procedure is followed by counsel in refusing to file a merits brief."); see, e.g., Lofton v. Whitley, 905 F.2d 885, 888 (5th Cir. 1990) (presuming prejudice where "Lofton may have been formally represented by counsel, but the failure to raise any grounds for appeal was the equivalent of the attorney's withdrawal."); Lombard v. Lynaugh, 868 F.2d 1475, 1480 (5th Cir. 1989) (presuming prejudice and finding appellant was constructively denied counsel where attorney "did nothing to attempt to aid Lombard's appeal beyond the initial perfecting of the appeal itself"). That is what happened in this case.
Anders creates a very low threshold for which arguments counsel must brief for the court. See United States v. Griffy, 895 F.2d 561, 563 (9th Cir. 1990); Lombard v. Lynaugh, 868 F.2d 1475, 1487 (5th Cir. 1989) (Goldberg, J., concurring). Certainly, counsel need not argue only "winning" arguments.
[5] Anders creates a very low threshold for which arguments counsel must brief for the court. See United States v. Griffy, 895 F.2d 561, 563 (9th Cir. 1990); Lombard v. Lynaugh, 868 F.2d 1475, 1487 (5th Cir. 1989) (Goldberg, J., concurring). Certainly, counsel need not argue only "winning" arguments.
The Fifth Circuit has granted state petitioners habeas corpus relief conditioned on the state not granting an appropriate out-of-time appeal. Lombard v. Lynaugh, 868 F.2d 1475, 1484 (5th Cir. 1989). Therefore, the Court will properly consider this action an action for habeas corpus relief under 28 U.S.C. § 2254 (2000) and treat the request for an out-of-time appeal as simply a request for the type of relief sought.