* Circuit Judge of the 9th Circuit, sitting by designation. REVISED - September 7, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30273

RAOUL A. HARRIS,

Petitioner-Appellant,

versus

EDGAR C. DAY, JR. Warden,

RICHARD IEYOUB, Attorney General,

STATE OF LOUISIANA

Respondents-Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana

August 30, 2000

Before FARRIS * , WIENER and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

Raoul A. Harris (“Harris”) appeals the district court’s dismissal of his petition for habeas2

corpus relief under 28 U.S.C. §2254 based upon ineffective assistance of appellate counsel. For the

reasons set forth below, we find that Harris was constructively denied effective assistance of appellate

counsel for his direct appeal, when only an “errors patent” brief was filed on Harris’ behalf and his

counsel subsequently withdrew via an Anders brief t hat failed to mention any arguable issues of

appeal.

F ACTUAL S UMMARY AND P ROCEDURAL H ISTORY

On April 6, 1988, at approximately 5:00 a.m., three men robbed a Seven-Eleven convenience

store in New Orleans East. One man pointed a gun at the cashier, while another took cash out of the

register and the third grabbed two twelve packs of beer and two bottles of champagne from a cooler

in the back of the store. After the men left, the store clerk saw them jump over a fence adjacent to

the store and get into a car. The cashier memorized the car’s license plate number, returned to the

store and phoned the police.

An on-duty

po lice officer heard the broadcasted description of the car, and about twenty

minutes after the robbery, saw a car which fit the description in the parking lot of another

convenience store. The officer ordered the occupants out of the car and detained them until the store

cashier arrived at the location. The cashier arrived and identified Harris as the gunman as well as the

two other participants in the robbery. The cashier also identified the beer and champagne inside the

car as the items which were stolen from the Seven-Eleven store. Neither the gun nor the money were

recovered.

After a jury trial, Harris and his two codefendants were convicted of simple robbery. Finding

Harris to be a second felony offender, the court sentenced him to fourteen years in prison. On direct3

appeal, Harris’ appointed appellate counsel filed a two page “errors patent” brief that did not raise

any specific grounds for appeal but only requested that the appellate court review the record f or

“errors patent on the face of the record” and reverse the conviction and sentence. Counsel then filed

a one page motion to withdraw pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18

L.Ed.2d 493 (1967), only stating that upon review of the record, there were no non-frivolous issues

for appeal. Harris then filed a pro se supplemental brief in which he raised seven assignment points

of error.

A Louisiana Court of Appeals a ffirmed the convictions and sentences of Harris and his

codefendants. The court addressed the seven assignments of error raised in Harris’ p ro se brief and

also found t hat the “errors-patent” and A nders briefs filed by Harris’ appellate counsel indicated a

thorough review of the record. In November 1994, the Louisiana Supreme Court denied Harris’

application for a supervisory writ.

Harris then filed t he instant habeas corpus petition arguing first, the denial of due process

because of the Louisiana courts delays in handling his direct appeal and state post-conviction motions,

and second, that both trial counsel and appellate counsel performed ineffect ively. Harris contended

that trial counsel was ineffective on several occasions and appellate counsel was ineffective because

of the “errors patent” brief.

The district court dismissed Harris’ petition without prejudice for failure to exhaust state

remedies. He appealed that ruling, which was then vacated and remanded for further proceedings

based on a finding that the exhaustion requirement was waived by the state’s inordinate delay in ruling

on Harris post-conviction application. On remand, Harris filed a supplemental brief, raising additional

claims that the evidence was insufficient to support the verdict; the trial court abused its discretion4

in permitting the prosecution to present illegally obtained evidence; and the prosecution withheld

exculpatory evidence.

A magistrate judge recommended that Harris’ habeas petition be denied, determining that

Harris’ claims were meritless. Specifically, the magistrate judge stated that appellate counsel’s motion

to withdraw, was granted only after the state appellate court reviewed the record and determined that

no frivolous issues existed and so appellate counsel’s failure to raise arguable issues was irrelevant.

After Harris objected to the magistrate judge’s report, the district co urt adopted it and dismissed

Harris’ habeas petition. Harris timely filed notice of appeal. The district court permitted him to

proceed in forma pauperis on appeal but denied him a certificate of appealability (“COA”).

This cour t grant ed Harris a certificate of probable cause (“CPC”) instead of a COA as

required, since Harris filed his habeas petition before enactment of the Antiterrorism and Effective

Death Penalty Act. See Green vs. Johnson, 116 F.3d 115, 1119-1112 (5 th Cir. 1997). Although

Harris raised several claims in his COA application, both he and appellees only briefed the issue of

ineffective assistance of appellate counsel. We granted Harris a CPC, finding that he made a

substantial showing o f t he denial of a federal right as to his claim that his appellate counsel

ineffectively performed by filing an “erro rs patent” brief without identifying whether any nonfrivolous issues for appeal existed.

D ISCUSSION

This case raises an issue of first impression, since following our de cisions in L ombard v.

Lynaugh

, 868 F.2d 1475 (5 th Cir. 1989) and Lofton v. Whitley, 905 F.2d 885 (5 th Cir. 1990) we have

not resolved the issue of

whether an indigent criminal defendant is effectively denied assistance of5

appellate counsel when counsel files only an “errors patent” brief and then withdraws from the case

pursuant to Anders, not ident ifying any arguable issues for appeal but only stating that the appeal is

meritless. This question is presented in a context whereby Harris submitted p ro se assignments of

error.

Harris filed his habeas corpus petition prior to enactment of the Anti-Terrorism and Effective

Death Penalty Act (“AEDPA”), thus pre-AEDPA habeas standards apply. On appeal from request

for habeas relief, this court reviews district court’s findings of fact for clear error and issues of law

de novo

. See Moody v. Johnson , 139 F.3d 477 (5 th Cir. 1998).

T wo requirements are necessary to establish that an attorney performed ineffectively as

proscribed by S trickland v. Washin g ton

, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“First, the defendant must show that counsel’s performance was deficient... [s]econd, the defendant

must show tha t t he deficient performance prejudiced the defense.” I d at 687. To demonstrate

prejudice, a petitioner must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. See Id. at 694. Judicial

scrutiny of counsel’s performance must be highly deferential, and co urt s must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional conduct.

See Id . at 689.

The State’s argument assumes that this case presents a typical ineffective assistance of counsel

claim. Since the state appellate court reviewed each of Harris’ pro se claims and found them to be

without merit, the prejudice requirement of Strickland is not satisfied and thus Harris’ claims fail.

The Fourteenth Amendment guarantees a criminal appellant the right to counsel in his first6

appeal as of right. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, L.Ed.2d 811 (1963). The

general rule announced in Strickland, that to prevail on an ineffective assista nce claim counsel’s

performance must be both deficient and prejudicial, is modified when the complained of performance

results in the actual or constructive denial of any assistance of appellate counsel. In such a case, the

petitioner need not demonstrate the typical Strickland- type prejudice, because prejudice is presumed.

See Penson v. Ohio , 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Childress v. Lynaugh

,

842 F.2d 768, 772 (5 th Cir. 1988).

Penson v. Ohio

, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1998) reaffirmed Anders

,

which recognized that in some circumstances, counsel may withdraw from a case without denying

fair representation, if some safeguards are observed. Anders requires, that counsel who believes an

appeal to be frivolous must first conduct “a conscientious examination of the case.” Id. citing Anders,

386 U.S. at 744, 87 S.Ct. at 1400. If counsel is of the opinion that the appeal is wholly frivolous,

counsel may request leave to withdraw and the “request must, however, be accompanied by a brief

referring to anything in the record that might arguably support the a p peal.” Id. Thus “a criminal

appellant may not be denied representation on appeal based on appointed counsel’s bare assertion that

he or she is of the opinion that there is no merit to the appeal.” Id.

In Penson

, the Supreme Court found that a criminal defendant was depri ved of

constitutionally adequate representation when appointed counsel was allowed to withdrawal from a

first appeal on the basis that the appeal was frivolous. “In cases such as this, it is inappro priat e t o

apply... the lack of prejudice standard of Strickland... [s]uch application would render the protecti ons

afforded by Anders meaningless....”[citations omitted], Penson 488 U.S. at 75, 109 S.Ct. at 346.

In Lofton v. Whitley

, 905 F.2d 885 (5 th Cir. 1990) this court held that the defendant had been7

constructively denied counsel when appellate counsel filed only an “errors patent” brief which did not

raise any arguable points for appeal. Id

. at 886-890. We determined that counsel’s failure to raise

any arguable grounds for appeal was the equiva l ent of withdrawing from representation without

complying with the requirements of Anders. See Lofton

, 905 F.2d at 887-888. Moreover, there was

no evidence that either counsel or the state court of appeals h ad made a searching review of the

record for any arguable basis for appeal. Id

. at 888. Accordingly, this court was unable to conclude

that there would have been no non-frivolous grounds for appeal or that counsel’s failure to brief the

issues was harmless. Id

. at 889.This court reversed and remanded the case to the district court for

entry of judgment granting habeas relief, unless that Louisiana state court afford Lofton an out-oftime appeal. Id

at 890.

The Lofton decision relied on Lombard v. Lynaugh, 868 F.2d 1475 (5 th Cir. 1989), which held

that t he defendant had been constructively denied counsel when his appellate attorney filed a two

page “no-merit” brief but did not formally seek leave to withdraw pursuant to Anders. See Lofton,

905 F.2d at 888 (citing Lombard

, 868 F.2d at 1480-1481). The L ombard panel determined that the

attorney’s actions functionally deprived the defendant of appellate representation altogether and that

a showing of prejudice was not required under Penson. See Lombard

, 868 F.2d at 1481. Unlike in

Lofton, the panel in Lombard indicated that the fact that there were non-frivolous grounds for appeal

was critical to its determination that the petitioner was entitled to relief. Id. at 1484.

This is not a case in which it is claimed that counsel’s performance was merely ineffective.

It is the constructive denial of counsel on appeal altogether which is at issue. The brief filed on Harris’

behalf o n direct appeal only requested the court to review the record for errors patent on its face.

The “errors patent” brief, and subsequent Anders brief which pointed to no arguable issues, left Harris1 Su pplemental Brief and Motion to Withdraw, by M. Craig Colwart,

Counsel for Defendant.

8 essentially without representation during the court’s decisional process. Counsel’s determination that

t here was no merit to Harris’ appeal, put him in the role of judge, and the role of advocate was

abandoned. Though Harris presented p ro se claims, Ande rs counsels that he was entitled to a

lawyer’s ey e in reviewing his case and pointing out arguable issues for appeal, even if that lawyer

decided to withdraw. The brief filed in L ombard was essentially the same as the one filed here, and

th is co urt determined that counsel did nothing to attempt to aid the appeal, beyond the initial

perfect ing of the appeal itself. “[I]n a functional sense, [the defendant] was afforded almost no

appellate representation whatever.” Id. at 1481. In line with our prior decisions in L ofton and

Lombard

, where “errors pate nt ” and “no-merit” briefs were submitted, we find that Harris was

constructively denied counsel during his appeal.

In his Anders motion to withdraw, Harris’ appellate counsel did not set forth any arguable

issues for appeal. In support of his motion to withdraw, he offered:

counsel avers that the procedural history of the case and the facts have

been reviewed, and that [his] conscientious and thorough review of the

trial court record discloses no non-frivolous issues to raise on appeal,

and no ruling of the trial court which arguably supports an appeal,

either under existing jurisprudence or under a change which should be

effected in the law. Counsel therefore moves to withdraw from the

case, and with this motion informs appellant that he or she may file a

supplemental brief in his or her own behalf. 1

In his brief supplemental to the motion to withdraw, counsel reasserted again that he found “the

defendant’s case on appeal to be wholly frivolous in that there are no non-frivolous issues to present

on appeal.” Thus, counsel never identified for the appellate court anything in the record which might

arguably support an appeal.9

We understand the contention that if in counsel’s assessment, the record did not present such

argua ble issues, the appeal would not be frivolous, and counsel would not have filed an “errors

patent” brief in the first p lace

. The magistrate judge’s recommendation denying Harris’ habeas

p etition to the di stri ct court found that the A nders brief was sufficient because although appellate

counsel did not ident ify any arguable issues for appeal, counsel was not required to “create

arguments.” See Moss vs. Collins, 963 F.2d 44 (5 th Cir. 1992). Although counsel is not expected to

make up arguments, Anders requires the attorney seeking withdrawal on appeal to at least file a brief

“referring to anything in the record that might arguably support the appeal,” Penson

, 488 U.S. at 81.

This is required even if the attorney determines that the appeal is frivolous. L ombard, 868 F.2d at

1480.

The mag istrate judge and district court also relied on the state appellate court’s decision

which, in affirming Harris’ conviction, addressed counsel’s brief and found that it complied with the

requirements of Anders

. The state appel lat e court conducted its own review of the record and

determined that there were no non-frivolous issues presented. Counsel’s motion to withdraw was

granted after the court’s independent review and aft er the court had addressed petitioner’s p ro se

claims on the merits. The State emphasizes that the state appellate court also “painstakingly reviewed

each of [Harris’] pro se claims and fou nd them to be without merit[,]” hence Harris’ claims were

heard and adjudicated . While t his statement is correct, the State does not address the holding

previously set forth in Penson that prejudice is presumed where an indigent defendant is actually or

constructively denied counsel in a direct appeal. “If a petitioner can prove t hat t he ineffective

assistance of counsel denied him the right to appeal, then he need not further establ i sh-- as a

prerequisite to habeas relief-- that he had some chance of success on appeal.” U nited States v.2 The parties here understood that this court’s order grating

Harris a CPC restricted the issue for appeal to the effectiveness of

appellate counsel claim. (Harris’ brief at 8, Appellees brief at 4 n.1)

Actually, a grant of a CPC on a particular issue “brings up all issues

raised in a petitioner’s federal habeas petition.” M cBride v. Johnson,

118 F.3d 432, 436 (5 th Cir. 1997). By failing to brief any other issues

in his appellate brief, Harris has effectively waived those claims.

10 Gimpson , 985 F.2d 212, 215 (5 th Cir.1993).

We cannot assess whether there were non-frivolous grounds for Harris’ appeal based on the

submitted briefs because both Harris and the State briefed only the issue of ineffective assistance of

counsel. 2 We do have express findings below by the state court of appeal and federal district court

that there were no non-frivolous issues for appeal, and we could venture into the record to make that

d etermination ourselves. L ombard and Lofton differ on this distinction, where in Lom bard there

were nonfrivolous issues for direct appeal, and the Lofton court co uld not determine whether

nonfrivolous issues existed. In any event, where a defendant is constructively denied the assistance

of appellate counsel, discussion of prejudice is unnecessary under P enson. S ee Lombard

, 868 F.2d

at 1485, 1487.

Our reading of Strickland

, Anders and Penson does not represent one side of a major split

among the Circuit Courts. Where the same issue has been posed, the tenor seems to be in agreement

with our own reading. The Sixth and Eleventh Circuits have held an Anders violation to constitute

per se ineffective assistance of counsel. Freels v. Hills

, 843 F.2d 958 (6 th Cir.1998); Cannon v. Berry,

727 F.2d 1020 (11 th Cir.1984). In a case where counsel submitted an A nders brief which did refer

to potential issues for appeal, but only provided arguments to affirm the defendant’s conviction, the

Eighth Circuit found the brief to fall short of Anders and allowed a habeas petitioner his direct appeal

reinstated for consideration of issues he had raised pro se

, as well as any other claims counsel believed3 “In an effort to comply with the Lofton decision [the court]

unanimously adopted Rule 11...” which attempts to clarify the

requirements of Anders. State v. Benjamin, 573 So.2d 528, 529 (La.

1990). If counsel determines that there are no meritorious issues for

appeal, he or she may withdraw pursuant to procedures outlined in

Benjamin

. See also State vs. Jyles

, 704 S o.2d 241 (La. 1997); S tate vs

Mouton , 653 So.2d 1176 (La. 1995).

11 were arguable. Evans v. Clarke, 868 F.2d 267 (8 th Cir. 1988). The Ninth Circuit recently held that

“[n]o separate Strickland competence analysis is called for with respect to ine ffect ive assistance

claim[s] when counsel fails to comply with Anders requirements for withdrawing from appeal.” Davis

v. Kramer, 167 F.3d 494 (9 th Cir. 1999)(citing to this court’s decision in Lofton for support); See also

United States v. Peak, 992 F.2d 39, 40 (4 th Cir. 1993)( “The Strickland test is not universal– there

are some genres of denial of counsel from which prejud ice is presumed, including ‘actual or

constructive denial of assistance of counsel altogether’...”)(quoting Strickland , citation omitted).

F inally, we may gain insight from the state courts of this circuit on this issue. Following

Lofton

, the Louisiana Supreme Court has rejected the practice of filing only errors-patent briefs

implement ing Internal Rule 11, which closely tracks t he requirements set forth in A nders and

mandates that such a brief be accompanied by a motion to withdraw. See State vs. Benjamin, 573

So.2d 528, 530-531. 3

Relying on Lofton the Louisiana Supreme Court in State v. Burton, 608 So.2d 156 (La. 1992),

held that petitioner was constructively denied the assistance of counsel on appeal when his appointed

attorney filed only an “errors pa t ent” brief. It further held that the fact the petitioner was able to

present pro se assignments of error to the reviewing court did not alleviate the constitutional harm

done to him by counsel’s actions. Id. (citing Penson, 488 U.S. 75). The Louisiana Supreme Court4 S tate v. Hampton

, 667 So.2d 550 (La. 1996); State v Price

, 650

So.2d 1168 (La. 1995); L ouisiana ex rel. Banks v. Louis iana , 634 So.2d

366(La. 1994); Green v. Whitley

, 625 So.2d 1051 (La. 1993); State v.

Robinson , 590 So.2d 1185 (La. 1992).

12 has consistently taken this position citing Lofton and Penson

. 4

Because we do not det ermine t hat there would have been no non-frivolous grounds for

appeal, and because Harris’ counsel asserted no grounds in the “errors patent” and Anders briefs, we

f ind t hat Harris is entitled to an appeal and an attorney to represent him in that appeal. For these

reasons we reverse the district court’s j udgment denying habeas relief, and remand to the district

court so that it may enter judgment granting the writ of habeas corpus unless the state of Louisiana

affords Harris an out-of-time appeal with the assistance of competent counsel.