Warren E. Burger: We will hear arguments next in United States against MacCOLLOM. Mr. Easterbrook.
Frank H. Easterbrook: Mr. Chief Justice and may it please the Court. The issue in this case is whether an indigent prisoner, who did not appeal his conviction, has, under the constitution, an unconditional right to obtain a transcript of his trial for perusal in the hope that the transcript will disclose errors, the nature of which he does yet know. Put another way, the question is whether Congress overstepped its constitutional powers, when it required indigent prisoners to show that they had some need of a transcript to support a non-frivolous claim for relief. The facts of this case are not complicated. Respondent was convicted in 1970 of uttering forged currency, and sentenced to 10 years imprisonment. He did not appeal that conviction. Counsel for respondent has represented that the reason he did not appeal was in order to avail himself of a more prompt motion in the District Court for reduction of sentence. The District Court denied that motion. In March 1972, respondent filed pro se a motion for transcript in forma pauperis. The Chief Judge of the District Court instructed the clerk of the court to return that motion to respondent, instructing him that he should file instead, a motion for collateral relief, pursuant to 28 U.S.C. 2255. In June of 1972, respondent filed a complaint for declaratory and injunctive relief, which the District Court allowed to be filed as a civil action. This complaint alleged that respondent desired collateral relief, that he believed that his counsel at trial had been inadequate, and that he believed that the evidence was insufficient to support his conviction. The complaint also alleged that respondent's memory and trial notes were inadequate and that without a transcript, he would be unable to frame his arguments for fair and effective relief. The prayer for relief --
Potter Stewart: Did the District Court consider this underlying pleading as one filed under 2255 of Title 28?
Frank H. Easterbrook: The District Court did not state how it was considering the complaint. It dismissed it for failure to state a claim upon which relief could be granted. We believe that the best interpretation of this is that it considered it as complaint under 2255 and the request for a transcript is ancillary to that complaint and then dismissed it accordingly.
Potter Stewart: Court never explicitly --
Frank H. Easterbrook: Court never explicitly --
Potter Stewart: -- set out those grounds?
Frank H. Easterbrook: -- set out those grounds.
Harry A. Blackmun: Mr. Easterbrook, is the respondent on parole now?
Frank H. Easterbrook: Yes, he is.
Harry A. Blackmun: Is he working?
Frank H. Easterbrook: I do not know, Your Honor.
Harry A. Blackmun: Maybe I should ask your opposition whether he is still indigent? Do you think the case has become moot at all?
Frank H. Easterbrook: We do not believe that it has become moot. He is still in custody for purposes of collateral relief, so long as he is on parole and his parole runs through 1980. If he is no longer indigent, this case might become moot, but we have no reason to believe that that is so.
Harry A. Blackmun: Well, if he is employed, it might not be.
Frank H. Easterbrook: That is correct.
Harry A. Blackmun: At least, we are not brought up to date.
Frank H. Easterbrook: We are not up to date. The record in this case closed as of 1973 and we have no further information as to his indigence after that date.
Harry A. Blackmun: (Inaudible) transcript would cost, how likely it would be?
Frank H. Easterbrook: The transcript is a transcript of a two-day trial, Your Honor. It would probably cost in the nature of $400, although we have not obtained an exact estimate.
William J. Brennan, Jr.: The stenographic minutes are still available?
Frank H. Easterbrook: The stenographic minutes are still available, although they have not been transcribed. The prayer for relief asked the District Court to declare that respondent has “an absolute constitutional right” to a verbatim transcript of his criminal trial, supplied at government expense to aid him in preparing a motion for collateral relief. The complaint is in essence, simply an assertion of respondent’s good faith. It asserts that respondent believes that his trial notes are inadequate, and that he believes that he is entitled to relief, but it sets forth none of the grounds upon which those beliefs are based. The District Court appointed counsel for respondent in order to investigate the claims because the files and records of the case did not fully disclose whether he was entitled to the transcript he sought. The investigation, with the aid of counsel, disclosed no grounds upon which a transcript was needed, other than as respondent’s counsel candidly admitted to the Court of Appeals, to peruse in the hope that some error, the nature of which could not yet be determined, might show up. The District Court ultimately dismissed the complaint for failure to state a claim. The Court of Appeals reversed, holding that a transcript must be provided upon request to search for error. We believe that the starting point for an inquiry into an indigent’s right to a trail transcript is 28 U.S.C. 753 (f). That Section provides that a trial transcript can be furnished, without charge to an indigent prisoner, proceeding in a motion for collateral relief, under Section 2255, and I quote “If the Trial Judge or a Circuit Judge certifies that the suit or appeal is not frivolous, and that the transcript is needed to decide the issue presented.” In other words, an indigent prisoner, far from being cut-off on account of poverty, from evidence that may be important to some collateral claims, is entitled by statute, to a trial transcript, if he can show first that the transcript is necessary to support certain factual allegations and second, those allegations, if proved by the transcript, would amount to a non-frivolous claim for collateral relief. There can be no doubt that the Congress meant to impose upon applicants the burden of demonstrating need and lack of frivolity. The Court of Appeals so held, and that portion of its opinion is reproduced at pages 8A to 10A of our petition for certiorari. The legislative history of Section 753 (f) shows that it was amended in 1965 to extend to proceedings under Section 2255, the same right to a transcript without cost, that previously had been available in habeas corpus. The 1965 Amendment adopted verbatim, a 1961 proposal of the judicial conference, and that proposal was drafted to incorporate the almost universal rule of both state and federal courts. A rule that had prevailed in collateral cases until the decision below. A rule that a prisoner must show more than a subjective desire for a transcript in a collateral proceeding in order to be entitled to it. We believe that this legislative history and the almost universal rule in habeas corpus proceedings also disposes of respondent’s argument at Section 753 (f) as worded and as construed by the Court of Appeals, suspends the privilege of the writ of habeas corpus. Far from suspending the privilege of the writ of habeas corpus. Section 753 (f) makes access to a transcript identical, under both habeas corpus and under Section 2255, there is no suspension.
Potter Stewart: There is no statute explicitly dealing with this subject in Federal habeas corpus, in Federal habeas corpus, you say it is a case law?
Frank H. Easterbrook: Section 753 (f) says that you can obtain a transcript without charge in habeas corpus cases. The case law is and was, in 1965 and was before then, that you must make the same showing that Section 753 (f) requires in 2255 cases, but it is a case law requirement rather than a explicit statutory requirement.
Potter Stewart: As far as the statute goes, it just says that you can obtain it?
Frank H. Easterbrook: That is right. Section 753 (f), we think, does no more than enacting to law, the observations of this Court in many of the cases, beginning in 1956 in Griffin against California, agianst Illinois, excuse me, dealing with a right to a transcript. This Court has observed many times that a transcript is not necessary in every case and that in many cases, less than all of the transcript will suffice and the legislature can take steps to effect those rules. Section 753 (f) is such a step. The question here, therefore, is whether the device Congress has chosen is unconstitutional. The burden of my argument is that Congress has provided indigents with multiple opportunities to review their criminal convictions, and multiple opportunities to obtain a transcript that would facilitate such review. Congress, therefore, has not cut-off review on account of a person’s poverty. It has simply structured and confined the methods by which such review can be obtained. Congress has provided the fair opportunity for review that this Court has held is required. It is true of course, that the provisions of 753 (f), requiring an indigent person to show need and lack of frivolity, do not apply to a person who can pay for his own transcript and in that sense, the destitute and the wealthy are not treated identically. The Court of Appeals thought this to be fatal, but this Court has held that absolute equality is not required, and the fact that a particular tool might be of use to some defendants and applicants for collateral relief, it does not mean that the constitution requires its provision. The constitution requires a practical opportunity for effective review, and we believe that Congress has provided that opportunity.
Warren E. Burger: (Inaudible) direct appeal, none under the Criminal Justice Act, he would have gotten a complete transcript --
Frank H. Easterbrook: Exactly, Your Honor. That is --
Warren E. Burger: -- or as much as was necessary?
Frank H. Easterbrook: -- as much as was necessary, that is the very first way. Every defendant, convicted in a federal criminal case, has a right to appeal and we believe that is also true in every state, with respect to serious crimes. On appeal, under the Criminal Justice Act, an indigent defendant has a statutory right to a transcript or a record of sufficient completeness to allow him to present all of his claims on appeal. In almost every case, a full transcript is prepared or an agreed statement of facts is reached. In all cases, in which a new counsel was appointed on appeal, the Criminal Justice Act requires a full transcript to be prepared, and this Court is so held in Hardy against the United States. An indigent defendant who seeks collateral relief --
Potter Stewart: Before you proceed, the same rule would be constitutionally required in any state appeal?
Frank H. Easterbrook: This Court has held that it is required in state appeals.
Potter Stewart: I do not know that there is a decision analogous to the Hardy case in state courts, but a roughly equivalent --
Frank H. Easterbrook: Yes, roughly equivalent. At least, there would be a requirement of a record of sufficient completeness to allow you to present your claim for a more complete record.
Potter Stewart: (Voice Overlap) and its progeny?
Frank H. Easterbrook: I think so Your Honor. An indigent defendant for whom such a transcript or a record has been prepared and who later seeks collateral relief, is entitled, without charge, to a copy of that transcript, and therefore, every indigent defendant has an adequate opportunity, both to obtain a transcript, and to obtain full review of his claims, without charge, and without making a particular showing of need, simply by appealing. He needs to resort to the standards under 753, only if he elects not to appeal. That is to say, no defendant in the federal system is denied a transcript on account of his indigence. Respondent’s current difficulties stems from his decision not to appeal and not from the federal statutes that govern provisions of transcripts. Then too, we think there are sound reasons for the decision of Congress to create a different standard when a prisoner seeks a transcript for use in preparing a motion for collateral relief. The difference acts as a channeling device, encouraging appeals, rather than delayed collateral attacks. Congress was entitled to conclude that this was desirable because it enables and indeed encourages errors in trial to be detected and corrected more quickly.
Warren E. Burger: Under the Court of Appeals' opinion would not make any difference, whether the post-conviction relief sought was 2 years, 5 years or 10 years -- (Voice Overlap)
Frank H. Easterbrook: Not at all, Your Honor, not at all, as long as the person was still in custody for purposes of 2255, in Court of Appeals' view would require the preparation of the transcript. That might be difficult in some cases, if the original stenographic tapes have been destroyed or lost. Usually, it is much less likely that that would happen, if the transcript had been transcribed.
Potter Stewart: Well, except, you concede that the statute provides it, that even if it is 5 years, 10 years, 15 years, 18 years, 23 years, that if he shows a need, then he is entitled to the transcript?
Frank H. Easterbrook: That is correct, Your Honor, but there would be some difficulties, we think, under the Court of Appeals rule, if the transcript could not be prepared and there were no established need for it. In that event, the remedy might be a collateral relief for want of a transcript, even though there would be no need for the transcript. That problem would not arise, if the transcript had to be furnished only upon the showing of Section 753 (f).
Warren E. Burger: The Court of Appeals (Inaudible) whether it is 2 years or 20 years or 30, they need show no reason for the need?
Frank H. Easterbrook: No. No reason whatever, Your Honor.
Warren E. Burger: No demonstration at all?
Frank H. Easterbrook: That is correct, no demonstration at all is required.
William H. Rehnquist: Is there an implicit limitation in the Court of Appeals holding, at least reserving the question of whether if the reporter had died, his notes were unavailable and a transcript simply could not be prepared. I did not read the Court of Appeals opinion to suggest the man would simply be out on the street for that reason?
Frank H. Easterbrook: The Court of Appeals did not specifically address that question, Your Honor, as indeed it did not have to because a transcript could be prepared in this case if that is necessary and I think that question is still fairly open to litigation in the Ninth Circuit. I do not want to indicate that the court has decided that, one way or the other.
John Paul Stevens: Mr. Easterbrook, supposing in his motion, he had alleged that his trial counsel was ineffective in that he had failed to make objections to the admissibility of evidence from time to time during the trial, that competent counsel would normally make, would he be entitled to a transcript?
Frank H. Easterbrook: It is our position that under those circumstances, that would probably not state a claim for relief, even if supported by the transcript. That would so for two reasons: One, because under most circumstances, that would not make out inadequate assistance of counsel, and the second because that is the kind of claim of inadequate assistance of counsel that could be raised effectively on appeal. It is type of trial tactics and trial decisions that can be reviewed very effectively on appeal and unless the allegations of ineffective assistance of counsel were coupled, Mr. Justice Stevens, with a contention that counsel was also ineffective in failing to advise of his right to appeal and failing to pursue an appeal, we believe that those kinds of claims should be raised on direct appeal, and not on collateral attack.
John Paul Stevens: But if the only error goes to the confidence of counsel, perhaps, I should change the example to make it a little stronger, that he did not make projections which any trained lawyer would make, you know, the standard is framed differently in different circuits, but assuming you have met in conclusionary terms the standard, how can you charge him with a failure to appeal, if he relies exclusively on the advice of the man he now says is incompetent, but did not realize at the time his was incompetent?
Frank H. Easterbrook: There might be some reason to inquire whether part of the incompetence dealt with failure to pursue the appeal. Assuming, however, that part of the incompetence dealt with advising him accurately of what would be good grounds for appeal and whether they were prospects, if there were a detailed showing, and if the claim was of such pervasive error throughout the trial, that no reasonably effective counsel would have engaged in this course of conduct. That might be the kind of claim that would require the preparation of a full trial transcript.
John Paul Stevens: And I take that that would not be sufficient, if it were merely stated as a conclusion?
Frank H. Easterbrook: If it were just simply stated as the conclusion here, that is my counsel was ineffective, it truly would not be sufficient. There would be varying degrees of sufficiency, of adequacy of the claim.
John Paul Stevens: In theory he alleges that he was so ineffective that the defendant’s Sixth Amendment right was violated?
Frank H. Easterbrook: If that is the only conclusion that is no adequate to require a trial transcript. Not only because of the reservations I have expressed and answered to your early questions, but also because there are many ways in which trial counsel could be inadequate, that simply would not show up in a transcript and an adjudication of the adequacy of counsel could take place without a transcript, but with extrinsic material, or with portions of the transcript, or if a greater specificity could be provided, it could be determined that there was no merit to the claim, even if proved to the last particular. They are many stopping points along the way, between the claim and the adjudication and not all of those stopping points are going to require a transcript to determine where it is. That is, I think, a very sound reason why Congress was entitled to require the applicants to state the nature of his claim, so that it could be determined whether this was one of those cases in which a transcript was needed, or whether it was not. There are a number of differences between direct appeal and collateral attack, that we think support the decision of Congress to impose different standards upon access to a transcript under them. I have discussed some of them in answer to Mr. Justice Stevens' questions. They stem primarily from the fact that a collateral attack is not a substitute for direct appeal and that most of the grounds upon which ordinary collateral attacks would be based, for example, the double jeopardy clause or the unconstitutionality of the statute underlying conviction, simply do not you the transcript at all. Conversely, most of the errors that would show up in a transcript do not provide grounds for collateral attack. Ordinary, evidentiary rulings of the trial or incorrect or inadequate framing of the charge to the jury, are not grounds that would support a collateral attack. The question of the sufficiency of the evidence is not a ground that would support a collateral attack. On collateral attack, the only claim open is that there was no evidence, and that the absence of evidence could be refuted by many materials other than the provision of any part of the transcript.
Thurgood Marshall: How do you get around the possibility that the jailhouse lawyers' use automatically ask for the transcript for appeal purposes?
Frank H. Easterbrook: That may well --
Thurgood Marshall: (Voice Overlap)
Frank H. Easterbrook: It may be that that is what would happen. We certainly can not exclude that possibility, but if that occurs, it is a result of the system of incentives created by Congress and we think that Congress was entitled to and indeed it may have been excellent idea to create those incentives because of the desirability of resolving promptly any claims of error, so that innocent men can actually released more promptly and so that if there are errors that require a new trial, the new trial can be had more promptly before memories are faded and evidence dissipated. It would be probably be a good idea to have claims of this sort resolve promptly on appeal, rather than in this case, 6 or 7 years later on collateral attack.
Thurgood Marshall: (Inaudible) I said he would ask for the transcript and then would not go through with the appeal?
Frank H. Easterbrook: In that event, he must face the consequent claim of deliberate bypass. Not only, as in this case, a bypass of his own question right to a transcript on appeal, but a deliberate bypass of his appellant remedies, sufficient to cut off later claims on collateral review. The jailhouse lawyer, I am afraid, would have to take that possibility into consideration.
Potter Stewart: As suggested by the colloquy with my brother Marshall, there is a time limitation on appeal and there is none in collateral attacks, save only that the applicant must still be in custody?
Frank H. Easterbrook: Yes, I agree. I think that the major consequence of Section 753 (f) and the particularized need and lack of frivolity requirements is simply to require individual applicants to show that they fall within the exception to the rule that normally a transcript is unnecessary to prosecute a collateral attack and indeed, in light of the burden of someone who seeks to overturn his conviction, and to prove that he was not justly convicted, to show that he is in fact, entitled any relief at all. Only by exercising, and using a screening device of this sort, can Congress exercise the power of which this Court has said that it has, to determine that there are some cases in which transcripts are unnecessary and some in which less than all of the transcript is necessary. Screening device serves other purposes as well. There are more than 15,000 federal defendants in criminal cases every year who elect not to appeal. There are large numbers of defendants in state criminal cases who elect not to appeal. If the decision of the Court of Appeals is upheld, there will be, at least for a period of time, a rather crushing burden upon court stenographers and reporters to produce large numbers of transcripts. It is a burden that might well slow down the process of production of transcripts, for those for whom there is a real and demonstrable need. Moreover, the requirements Congress has used create at least rough equality between the destitute defendant and the prisoner --
John Paul Stevens: Let me just interrupt for a second. Do you concede that our holding in this case will necessarily determine the state practice as well as the federal practice?
Frank H. Easterbrook: Insofar as it rests upon the constitution Your Honor, it would necessarily determine the state practice as well.
John Paul Stevens: Do you think a holding against you would necessarily rests on the constitution, which is what I probably should have asked?
Frank H. Easterbrook: In light of the explicit provision of Congress in Section 753 (f), that there should be a showing of need and lack of frivolity, I think the decision by this Court would have to rest on the constitution.
Potter Stewart: We have to hold that that statue is pro tato constitutionally invalid?
Frank H. Easterbrook: That is correct, to the extent that it places those two requirements upon an applicant for collateral relief.
William J. Brennan, Jr.: But it did not have reach the constitutional question? What is the ground do you percieve n the Court of Appeals' opinion?
Frank H. Easterbrook: Court of Appeals said in a footnote that it was addressing a deficit not filled by the statute. We do not perceive on what grounds it could require Congress to expend moneys and to provide the transcript to indigents when it has elected, by statute, not to provide such a transcript, unless the constitution requires that. It was the constitution that Court of Appeals thought that required it to fill the deficit.
William J. Brennan, Jr.: Even though it says it did not have to reach the constitutional question in fact, it was saying that was constitutionally required?
Frank H. Easterbrook: That is correct. I think that is the only reasonable interpretation of what the court did.
John Paul Stevens: Id it possible Mr. Easterbrook to hold that an adequate showing of need, within the meaning of the statute, is made by an allegation that the petitioner was not afforded effective assistance of the counsel as required by the Sixth Amendment?
Frank H. Easterbrook: Without more?
John Paul Stevens: Without more! Would not that be, at least, a theoretically permissible way of deciding the case without reaching the constitution --
Frank H. Easterbrook: I believe that would be a theoretically permissible way to decide the case. Although, in that event, there will be some tension between the outcome of this case and the Court’s resolution in Coppedge against United States, in which the Court said that the standard for assessing frivolity of a motion for leave to appeal in formo pauperis, is an objective standard. That is, it depends upon demonstrable facts and not upon the feelings or beliefs of the person who is asking to appear in formo pauperis. If it were sufficient, simply to make a claim that I believe that I was not given the adequate assistance of counsel, that would be an entirely subjective standard and would amount to that extent, we think, to a change of the standard that was established by Coppedge.
Potter Stewart: Because here the statutory condition is not that the suit be not frivilous and that the transcript is needed to decide the issue presented by the suit or appeal, but it really, by a trial judge’s or a circuit judge’s certificate?
Frank H. Easterbrook: That is correct.
Potter Stewart: Whatever the facts may be?
Frank H. Easterbrook: That is right. And if --
William J. Brennan, Jr.: (Inaudible) on an allegation such as my brother Stevens suggested?
Frank H. Easterbrook: To the best of my knowledge that has never been litigated. We have never sought through review such a certificate. There is no express prevision in the statute or in the criminal (Voice Overlap)
William J. Brennan, Jr.: Do you think it could be reviewed?
Frank H. Easterbrook: I would not like to foreclose our opportunity to test that, but I would say that we have never sought to review them and that ordinarily, if a trial judge or an appellant judge makes a certificate that is quite sufficient for the government.
Potter Stewart: What happens in case the district judge simply refused the request for a transcript?
Frank H. Easterbrook: That is correct.
Potter Stewart: Wihtout --
Frank H. Easterbrook: He dismissed -- he dismissed the claim --
Potter Stewart: Without certifying anything?
Frank H. Easterbrook: -- without certifying anything. The respondent then could have sought leave from a judge of Court of Appeals. He could have sought the certificate from the Chief Justice --
Potter Stewart: An individual judge, right?
Frank H. Easterbrook: -- from any judge.
Potter Stewart: Any judge at that?
Frank H. Easterbrook: He did not do that because it was his intention to establish the principle that he had an automatic right to a transfer and so he appealed the --
Potter Stewart: He appealed the dismissal?
Frank H. Easterbrook: Yes, Your Honor.
Potter Stewart: And that was part of the case in the Court of Appeals.
Frank H. Easterbrook: Court of Appeals decided --
Potter Stewart: There is no allegation of any seperate charge?
Frank H. Easterbrook: None to any circuit judge. The Court of Appeals decided that he had unqualified right.
John Paul Stevens: Mr. Easterbrook, it is to my understanding that there are federal districts, at least there have been, in which as a matter of routine, the United States attorney automatically orders a transcript in all cases in order that they will expedite the preparation of record and shorten the period required for appeal, for disposition of the appeal. Do you know the extent to which that practice is followed in the federal system?
Frank H. Easterbrook: I know that that practice is followed in a number of districts, but I think in great number of less than the majority of districts. We do not have an exact figure on the number of districts in which that is true, and it is also true as we discussed with the Court in Hardy against United States, that there are a number of districts in which when there is a request for a transcript, the transcript will be prepared as less expensive and less burdensome than litigating the question of access to the transcript, but of course the parameters of such preparation are set in large measured by the statutory requirements and the constitutional demands, so that the United States’ attorneys will know when it is that they should order such a transcript to be prepared.
Thurgood Marshall: But assuming a transcript was prepared, you would not have an objection to give it to him?
Frank H. Easterbrook: None at all, Your Honor and we believe that the 28 U.S.C. Section 2250 would require it to be given.
William H. Rehnquist: Mr. Easterbrook, you used the word parameters, what do you mean by that word?
Frank H. Easterbrook: The contex, the legal context in which the decision is made in not to resist the claim for a transcript depends upon statutes and the constitutional decisions of this Court and the decisions --
William H. Rehnquist: Just interchangeably with perimeters?
Frank H. Easterbrook: No, I did not.
William J. Brennan, Jr.: Boundaries might have --
Frank H. Easterbrook: Boundaries might have been even a better term, Your Honor.
Harry A. Blackmun: (Inaudible) dictionary for the meaning you have just given?
Frank H. Easterbrook: I am afraid it is a corruption of a perfectly good scientific term. Going to the language perhaps is one of these weeds of language that crops up far too often.
Warren E. Burger: Mr. Strait.
John Strait: Mr. Chief Justice and members of the Court. My name is John Strait. I am the attorney representing the respondent in this case, who is the petitioner and the appellant in the District Court and the Court of Appeals below. I will try to address some differences of opinion which the respondent has with the petitioner here in his position regarding the issues before this Court. The issue presented by this case is considerably narrower than that as stated by the petitioner here. The issue is far closer than what you have implied, Mr. Justice Stevens, by your questions and that is not simply on a general allegation of demand for a transcript, thus an indigent federal petitioner subject to pursuing his rights, under Section 2255, become entitled to a transcript, but rather where there is an allegation of specific constitutional error, in this case, the violation of the defendant in the original case as the petitioner's rights to Sixth Amendment effective assistance of counsel and Fifth Amendment due process rights for lack insufficiency of the evidence, where that specific allegation is made, and made in good faith, but cannot be supported by specific references to the record, because the record does not exist, with which to support those allegations.
Thurgood Marshall: Do you mean anytime a man says it is insufficient evidence, he gets a transcript?
John Strait: Basically; that is the respondents’ position herein.
Thurgood Marshall: Have you seen one that did not have it in there?
John Strait: Yes, Mr. Justice Marshall, I have seen several. The difference between my position here and the Solicitor General's is that I represent a lot of people in post conviction proceedings and one of the roles of the counsel in trying to (Voice Overlap)
Thurgood Marshall: You do not use to put in insufficient evidence?
John Strait: No, not normally, not unless I am very certain that there is some basis to support that.
Thurgood Marshall: (Voice Overlap) insuffcient error?
John Strait: I am saying that at least that combined with the Sixth Amendment, which is the case before the Court --
Thurgood Marshall: What was the exact language you pleaded on the Sixth Amendment?
John Strait: You will find that in the appendix at page 11 thru 13, the court's appendix.
Thurgood Marshall: What is the exact language?
John Strait: It is at the bottom of page 11. Petitioner in good faith believes the transcript will show that and then at the top of page 12, a petitioner who was not afforded an effective assistance of the counsel as required by the Sixth Amendment of the United States Constitution, and immediately below that, sub B, there was insufficient evidence to support --
Thurgood Marshall: Is it possible that you can have a broader one in “he denied effective assistance of the counsel as required by the Sixth Amendment?
John Strait: No, I do not believe so. The problem that was confronting the petitioner --
Thurgood Marshall: Let me ask you again. You think if anybody from now on makes (Inaudible) these two, he gets the transcript?
John Strait: Well, the problem is –
Thurgood Marshall: Yes or no?
John Strait: The answer is yes. The problem with that, if I understand your reluctance to accept that position, is that these are constitutional claims. They are in fact constitutional claims which require a transcript in order to be asserted and reviewed by the court and indeed for the trial counsel, that is the counsel that is representing the individual at the trial court level on the post-conviction relief proceeding, to have it available to him to review solely, so he can tell whether they are meritorious to raise and that is the problem that has been recurrent in the pleadings here and the misquoting of the statement taken by respondent herein at the Court of Appeals below.
Potter Stewart: I understood Mr. Easterbrooks’ position to be that insufficiency of the evidence was not a ground upon to support collateral relief. The total absence of any evidence would clearly be, under Thompson against Louisville.
John Strait: That is correct.
Potter Stewart: But, insufficiency of the evidence is something available on appeal, but not on collateral attack. Is it that not Mr. Easterbrook‘s position?
John Strait: I would have a caveat to that position. That is his position, yes. I would have a caveat to that position to the degree that the difference between a total lack of evidence in the record for the Fifth Amendment or Fourteenth Amendment purposes versus the insufficiency of the evidence is not an apparent difference in standard. As in my experience with appellant courts, the issues are treated exactly the same.
Potter Stewart: As far as this Court's jurisprudence goes, one is a constitutional violation, the other is not?
John Strait: Well, I would agree with that, Mr. Justice Stewart, but the position that I am asserting is that the constitutional implications or the standard that is actually employed in reviewing the record in order to determine whether there was an insufficiency of the evidence, and the standards that are employed in order to determine the lack of evidence under the Fifth Amendment, in my experience, had been co-extensive, and so the problem is essentially partially a semantic one in that the necessity of the transcript to raise either issue is exactly the same, and whether one could raise one only on appeal, and the other properly in either appeal or post-conviction relief.
Byron R. White: Is it a statutory standard or does the statute provide for the standard for review on direct appeal of the evidence, or is it a rule?
John Strait: No, I believe it would be case law. There is no statutory standard.
Byron R. White: But on collateral relief in the federal court with respect to a federal prisoner, cannot you make an allegation that the evidence was not sufficient to satisfy a statute or rule?
John Strait: Yes, but again I think the standard that the petitioner would bare would be exactly the same, whether you rephrase it in the constitutional or the statutory sense. He would have to show there was no evidence in the record to support that the statutory element that he was arguing was not sufficiently reflected.
Byron R. White: Would not this situation here arise only where or mostly where the issue involved was not raisable on appeal?
John Strait: No, I do not think it necessary would. It could in fact, be raised on the appeal. The effective assistance of the counsel issue might, for practical reasons, not be available on appeal because of the difficulty of the individual involved, knowing that he would suffer from ineffective assistance of counsel.
Byron R. White: If there had been appeal, there would have been a transcript, I take it?
John Strait: Yes, that would be correct, for all practical purposes. The Solicitor General’s office is not conceding that you are entitled to a transcript as of right and appeal without a showing of some need. Presumably they are trying to adhere the position, the narrowest reading of Hardy versus United States which says at least, where there is a new counsel on appeal, there is an absolute right of the trial testimony transcription, but they are holding open the question of whether there is original appointed counsel or original trial counsel on appeal.
Byron R. White: As a practical matter, this problem would arise only when there has not been an appeal then?
John Strait: That is correct, and that is exactly the reason why the government’s position herein does not address the problem which MacCOLLOM faces, which is this is his only remedy. As I pointed out in my answer in brief, there can be no allegation and intentional bypass, the record does not support that. The very problem raised by the Sixth Amendment effective assistance of counsel as implied by your question is that the individual who is subject to the ineffective assistance of the counsel will also have his appeal rights affected by that.
Byron R. White: It sounds as though it would hardly ever arise if it were in the case of a state prisoner?
John Strait: It would be extremely unlikely (Voice Overlap)
Byron R. White: Because he would have exhausted his state remedies which would include an appeal?
John Strait: Normally that is correct.
John Paul Stevens: Which would involve a transcript?
John Strait: That is correct; under the virtually unanimous rules of the states, which I am familiar.
William H. Rehnquist: But how about not of a claim of ineffective assistance of counsel relating to the explanation of the right to appeal, but simply a claim limited to ineffective assistance of counsel at trial? You say that is the kind of thing that would never be raisable --
John Strait: No, that would certainly be raisable in most state court appeal proceedings.
William H. Rehnquist: In the federal court too?
John Strait: And in a subsequent federal court proceeding.
William H. Rehnquist: I mean a direct appeal on the federal system?
John Strait: Yes.
William H. Rehnquist: Are you suggesting Mr. Strait that the Court of Appeals' statement of its holding is broader than it was necessary?
John Strait: Very substantially, Justice Rehnquist. What I am suggesting specifically is that the actual language, which the government bases virtually the entirety of its position upon is not the holding in the cases exclusively dicta, because in this particular case, the indigent petitioner under Section 2255 did allege constitutional error. He did allege a good faith belief that it existed. He did show that there was no adequate alternative to a transcript with which to present the material to the court and the functioning of Section 2255 left him with no alternative, but to follow this procedure.
William H. Rehnquist: Well, you say then where the Court of Appeals in the last sentence says, we hold, that is really dicta, which it may well be?
John Strait: That is exactly what I am asserting, yes. I am saying that if the court wishes to breach the broader issue, that is, the issue which has been framed by the solicitor -- his representative here, is where there is an absolute right to a transcript for any indigent federal prisoner proceeding ancillary to a 2255 proceeding, that issue is not really before this Court, and ought not to be reached.
William J. Brennan, Jr.: (Inaudible) that the Court of Appeals decided that there had been compliance with 753 (f)?
John Strait: I think what the Court of Appeals confronted was the problem of other courts' interpretations of the demands of 753 (f), with particular reference to specific claims like of the Sixth Amendment ineffective assistance of the counsel, and found that that was the most compliance that could be provided.
William J. Brennan, Jr.: Well, can it be compliance with 753 (f), except as an application for and the certificate rendered either by a trial judge or a circuit judge?
John Strait: No, there would have to been a certificate and that issue (Voice Overlap)
William J. Brennan, Jr.: So at the very least, the Court of Appeals decision does not rest upon a holding of compliance with 753 (f)?
John Strait: No, I believe that is correct. What the Court of Appeals' decision rests upon is its reading of the interrelationship between Section 1915, the general forma pauperis provision, and 753 (f) and the apparent inconsistency in relation to habeas corpus 2255, and in Forma Pauperis generally and said, in view of the unclear statutory nature that now the Solicitor General is asserting, that is quite clear to him based on his prior reading of the cases, but certainly there is some room for disagreement about that. And I believe Mr. Justice Blackmun has addressed some of the ambiguities here in an article in 43 federal rules decision, which addresses the at least the nominal nature of the problem. And what I am suggesting is that the Court of Appeals attempted to fashion a remedy, given that situation, ought not to be disturbed, since there is no particular reason, given the nature of the holding here to do so, that is the actual holding of the case.
Speaker: (Inaudible) holding?
John Strait: I think that there are constitutional principles which led the Court of Appeals to adopt that particular statutory reading. I do not believe that the actual literal holding that the Court of Appeals reached, in their mind, was a constitutional holding.
Byron R. White: I think they held that it is requied by the constitution?
John Strait: I think that if they had felt they could not have interpreted the statutes that way, the way that they did, they would have been forced to strike them constitutionally, which of course, is the position that we assert here insofar as it applies to MacCOLLOM's particular case.
Potter Stewart: The dissenting judge in the Court of Appeals certainly viewed the court's decision as a constitutional decision, did he not, Judge Taylor?
John Strait: Yes, Judge Taylor did and I would, in that regard, to be candid, I would say that I do not believe that unless the constitution places some pressure upon reading the statutes that way, that would be, in fact, the way that you would interpret the statutes. Yes.
Warren E. Burger: What if the five or six, whatever the number were of judges who voted for rehearing en banc view of that question?
John Strait: They exclusively viewed it as a constitutional question, simply saying that there was no reason to depart from the statutory interpretations adopted by other circuits and in the initial hearing of Wade v. Wilson which was ultimately reversed and remanded on other grounds by this Court. No reason in the Ninth Circuit, no reason to adopt a different interpretation, unless there was a constitutional reason to do so, and they were of the opinion that the Cour's decision, this Court's decision as to --
Speaker: (Inaudible) panel?
John Strait: The position of the panel was that Wade did not reach the issue, specifically and that Wade had been cast in further doubt to the degree that its dictum did, by the subsequent court decisions across in North Carolina versus Britt.
Byron R. White: Currently, the majority of the active judges that believe that Wade bound neither or they would have grant a hearing?
John Strait: That is correct, and I might add that as the litigant there, I was so much surprised that they did not; I expected them to do so. The position that we assert, has not, I think been accurately presented to the Court, not too surprisingly by the Solicitor General in regards to Article 1, Section 9, clause 2. Since this is the only forum that the petitioner below, the respondent herein has, in which to assert his Sixth Amendment and Fifth Amendment deprivations of which he complains, the question of his right to transcript becomes one of access, not simply a nice tool to help him, once he gets in because of the way that the Section 2255 operates. And I would refer you to the extensive discussion of 2255 and its procedures in the Hayman case, which this Court decided, and also, in the Socol article, which is cited in my brief. You might also refer to the University of Kansas Law Review article in volume 20, student note, which talks about the dilemma which is presented to the petitioner, who asserts claims, such as MacCOLLOM's. Specifically, what happens is, in order to assert his constitutional claims of Fifth and Sixth Amendment depravations of right to counsel and sufficiency of the evidence, the problem then becomes one of him having to identify as a prerequisite, to even having his 2255 application accepted, and then getting his transcript. He has to identify to the record in a procedure very similar to that, struck down by this Court in Gardner versus California. He has to identify the basis for his claimed allegations of error.
William H. Rehnquist: Mr. Strait, you previously suggested that ineffective assistance of counsel claims were virtually impossible to raise on appeal or at least very, very difficult, but certainly insufficiency of evidence claims are not difficult to raise on appeal?
John Strait: No, that is correct.(Voice Overlap)
William H. Rehnquist: I guess the traditional form to raise them?
John Strait: I agree. The problem is that there is no constitutional guarantee to the opportunity to do so, and the bypass argument essentially which, the Solicitor General relies upon to emphasize this policy choice of Congress to emphasize appeal over post-conviction relief, stands the constitutional relationship between post-conviction relief and appeal on their head.
William H. Rehnquist: But why do you need a constitutional right to do so when you got a statutory right?
John Strait: You do not, but MacCOLLOM would, because in MacCOLLOM’s situation, he had both the problems; Sixth Amendment and ineffective assistance of the counsel, Fifth Amendment, pardon me, insufficiency. He was not able to raise by appeal because he did not do so, and if (Voice Overlap)
William H. Rehnquist: You say he was not able to because he did not do so. Are you saying that had he chosen to appeal, there would have been some impediment to his raising it?
John Strait: No, what I am saying is that the very process of the choice to appeal was affected by the very ineffective assistance of the counsel, which he asserts. Secondly, if the government is to say that there has been a essentially an intestinal bypass of the right to a transcript, not the right to post-conviction relief, which they can not argue, because of Article 1, Section 9, Clause 2, then the problem is that nowhere was MacCOLLOM advised, and I am certain of this, that the record will reflect it, nowhere was MacCOLLOM advised that if he did not exercise his right of appeal now, he would not get a transcript. It would stand the concept of waiver on its head. Of course he was never advised of that, and that is not in fact --
William H. Rehnquist: You say, of course he was never advised that, but he does not allege that, does he?
John Strait: No, he cannot at this time until he gets the transcript.
William H. Rehnquist: Well, had he gone ahead and appealed, he would have had a transcript, and perhaps could have made that allegation?
John Strait: But the problem is, I understand your position. The problem is that he would have to know that he should appeal in order to get a transcript before he can knowingly make any decision to bypass that right, if you follow me.
William H. Rehnquist: Yes, but your man does not allege in his petition that he was not advised of his right to appeal?
John Strait: No, he does not allege that he was not advised to his right to appeal by the court. The allegation that he would make specifically when this matter is returned to the District Court for further proceedings would be that, his attorney did not advise him of what would happen if he did not appeal.
William H. Rehnquist: Well, we do not know what he would and what e would not allege (Voice Overlap)
Thurgood Marshall: Why did he allege that?
John Strait: Well, the problem is that most of the material that is involved in that issue was also connected to the Sixth Amendment question because there was a colloquy he believes, and I, as the attorney, entered the case afterwards, I have no way of knowing whether this is accurate or not until I see the transcript, he alleges that there was a colloquy between him and the attorney on the record --
Speaker: (Inaudible)
John Strait: No, it is not, but the point I am raising is that the only way it will ever get before anyone is if he has a transcript.
Thurgood Marshall: (Voice Overlap)
William H. Rehnquist: (Voice Overlap) allege the transcript?
John Strait: I am sorry.
William H. Rehnquist: Why cannot he put in the application or petition he filed?
John Strait: He probably would have been willing to do so. The attorney who was representing him at that time felt that there was some question as to whether that would in fact turn out to be the case, and wanted to see the transcript first before he took up the court's time in allegation, that he thought very likely, could be, in fact, frivolous, which raises a number of issues that I wish to discuss briefly with the Court. And these would have to do with the policy questions before the Court that are presented by the broader issue, which if the court reaches, I think it should consider, and we submit it should consider. The governments’ position is virtually exclusively that there is a burden on court reporters services and that there is a financial interest in reducing the availability of transcripts in situations such as MacCOLLOM's. This Court has never found that monetary considerations alone justify the depravation of right to a transcript or availability to a transcript in an original proceeding. Secondly, as I believe Justice Marshall pointed out by his question, there are likely to be an increased number of requests for transcripts, so that there will be proportionately less monetary saving, if any. Thirdly, as the counsel for --
William H. Rehnquist: You suggest that the whole thing is kind of a balancing process, but certainly in cases such as Ross against Moffitt, where we held there was no right to counsel on a discretionary appeal. That is not in terms of balancing the financial harm of the state against the benefit to the indigent. It is just a question of saying the indigent's rights goes so far and no further?
John Strait: I agree. I think Ross supports the position that MacCOLLOM takes here, which is that since the discretionary appeal is being exercised, as the Court points out with a series of factors, including the availability of a transcript, the prior assistance to counsel, presumably the availability of counsel prior to the time he withdraws from the discretionary appeal application, etc.
William H. Rehnquist: Well, you may be right, but the analysis is in terms of access, not in terms of what burdens that then would place on the government?
John Strait: I agree, and that is why I have been emphasizing that it is a question of access here, not simply a question of expense, but there are policy considerations which the Solicitor General has raised regarding expense and availability of resources for doing things like this, and I felt it was appropriate to address those. Our position really is that the very policy of post-conviction relief and the efficient functioning of the lower courts requires that MacCOLLOM’s position be, in fact, adopted and my premise is that the screening function, performed both by counsel where counsel exists. In the day of legal services and prison legal services projects that is not as uncommon for indigents as it used to be without the capacity to retain counsel and secondly, the function of the Court itself in reviewing 2255 applications will be greatly enhanced, and minimize ultimately the judicial time expended. For exactly the same reason that those District Court and federal attorneys have adopted the policy in some areas in the country, and not resisting transcript applications because of the litigation cost and time involved in litigating whether the persons entitled to them or not, the court will be spared that amount of time, when the record by the pro se applicant comes into him, with or without the assistance of the counsel at some point, the record will reflect clearly the existence or non-existence of the claimed errors, which will allow the reviewing judge, consider with greater freedom to screen the cases and get rid of them, if they are in fact, frivolous. Lastly, the dilemma that I was addressing to you Mr. Justice Rehnquist of the trial lawyer's ability to try to find out if there is a merit to what its client says is greatly enhanced, where the lawyer in fact exists and that, in my experience, is one way of minimizing some impact on the courts for frivolous claims.
Warren E. Burger: (Inaudible) the impact on courts in all cases except where the plan is ineffective assistance of counsel, and that is for District Court to require the trial lawyer to prepare the appeal?
John Strait: That may work. There are a number --
Warren E. Burger: How many trial lawyers who try a case for 2 or 3 days need a full transcript?
John Strait: Well, it depends. Speaking as a trial lawyer Mr. Justice, I found that I almost always need one because the things that I am focusing on is an advocate in court to a jury are very different than the kinds of things I review the record for to be addressed in appellant court or in a post-conviction relief proceeding.
Warren E. Burger: Does that mean you need the entire transcript to make an evaluation of an appellant problem?
John Strait: Very often not, but what I do is I.
Warren E. Burger: (Inaudible)
John Strait: Not in my experience Mr. Chief Justice.
Warren E. Burger: Do not you keep notes when you try a case?
John Strait: Yes, but the notes very rarely reflect, for example, on the basis of the courts rulings on issues and evidence which --
Warren E. Burger: We will resume there at 1 o'clock.
John Strait: Thank you very much.
Warren E. Burger: Mr. Strait, you may continue.
John Strait: Mr. Chief Justice, I am not sure -- I believe my time has expired so I will conclude with these remarks. The problem is presented for the particular indigent 2255 petitioner in MacCOLLOM situation is that where he is raising Sixth Amendment and Fifth Amendment issues as he has, the transcript itself becomes the access issue under the scheme of 2255. Without the transcript, he cannot frame his issues properly to be reviewed by the District Court for the initial screening, and once the District Court has screened them, cannot review the issues properly as to frivolity without the transcript to tell whether those issues are properly set forth in the record. Given that situation, the statutory scheme would present Article 1, Section 9, Clause 2, suspension of the writ problems, as I have stated in my brief, if the Court were to reject the position taken by the Ninth Circuit, as to the narrow category of petitioners represented by MacCOLLOM, the respondent before this Court.
Warren E. Burger: (Voice Overlap) represented by him? Those who have a claim that includes, whatever else it has, that includes the claim of ineffective assistance of the counsel is --
John Strait: And, in addition, those that have shown by their affidavit no adequate alternative to a transcript from which to get that information, and also those who had counsel appointed, which was the case for MacCOLLOM, by the initial trial court; all three of those distinguishing factors. Excuse me, I take it that I do have more time, thank you. The primary problem that is presented by the government’s approach to habeas corpus is that it presumes that there is some necessary incentive available through the appellant scheme which undercuts habeas corpus. That obviously could not be a proper congressional purpose. While there may be, in fact, values to be emphasized by encouraging early appeal in criminal cases. The simple fact remains is central to the government's bounding was the concept of habeas corpus, which means that there never will be a concept of finality in criminal law, the same as there would be in a civil case. For that very reason, most of the government's arguments concerning the advantages which Congress has created by discouraging habeas corpus, simply do not address the constitutional question which is raised by MacCOLLOM situation.
William H. Rehnquist: Well, you suggest that Congress would have had to enact the habeas corpus act of 1867? For 80, 90 years, there was no collateral review even of federal convictions?
John Strait: That is a very tough question Mr. Justice Rehnquist. My position is that today, there would have to be some implementation, or an interpretation by the courts that the Habeas Corpus Act was self-implementing, and that we have never had to confront the question with the judiciary act alone. If it were none, it would not present some jurisdictional basis for habeas corpus.
Warren E. Burger: (Inaudible) Next week, next session repealed the 2255, the Habeas Corpus Act, so that there was no stated post-conviction remedy, what then?
John Strait: My position is that Article 1, Section 9, Clause 2 would become self-effectuating, and the courts would have to entertain such motions, presumably, such proceedings, presumably, this court.(Voice Overlap)
William H. Rehnquist: Even though no one thought for the first 80 years of the Republic that it had that effect.
John Strait: Well I believe that there was, the Judiciary Act of 1789, if I am not --. That is correct (Voice Overlap) Yes, I understand that.
William H. Rehnquist: Did the 1867 Act not bracket federal prisoners or the pre-1867 litigation cover federal prisoners the way the 1867 Act covered state prisoners?
John Strait: I do not know.
William J. Brennan, Jr.: The Judicary Act of (Inaudible) had a provision that covered fereral prosioners?
John Strait: Yes, it does, there is no question, the Judiciary Act of 1917 --
William J. Brennan, Jr.: (Inaudible) extended federal habeas relief to the state prisoners?
John Strait: That is right and this Court had not been confronted with a position prior to the Fourteenth Amendment's enactment of whether the habeas corpus right would have to implemented directly by the states and prior to the time that could have confronted under the Fourteenth Amendment as a right made applicable. The problem has been resolved by the legislation to which you referred. The position that the government takes with regards to the Equal Protection issue raised by a respondent below, I believe misstates the position which both the Ninth Circuit adopted in its opinion and that asserted to here by a respondent. Specifically, the Equal Protection position taken is not that the wealthy person’s standards are to be met by the state or the federal government in aiding indigent prisoners. Quite the contrary, the issue is one of adequate access, and the language which the lower court relied upon, which I submit is appropriate and meets MacCOLLOM’s requirements in this case, is a language of this Court in Ross v. Moffitt, specifically, that the duty of the system is to assure the individual, the indigent defendant, an adequate opportunity to present his claims fairly, and at least where Sixth Amendment claims and the Fifth Amendment claims as asserted by MacCOLLOM or raised, that required transcript in the post-conviction relief context of habeas corpus. I do not believe that the government can assert to the contrary that the language we relied upon below is any different. That is the standard. It is the standard used by this Court in Equal Protection cases in right to transcript and right to counsel, and that is, I believe, the only standard adopted by the lower court decision.
Harry A. Blackmun: Mr. Strait, I want to catch you before you sit down. Is your client on parole?
John Strait: It is an awkward question to answer, Mr. Justice Blackmun. My client’s position right now is that he was revoked recently and is presently incarcerated in the King County Jail for Seattle, Washington, pending a federal detainer hearing, a federal review hearing of his parole status, which I have been advised, he will be returning to federal custody, presumably at McNeil island, and whether he will be transferred again to Leavenworth, Kansas, I do not know.
Harry A. Blackmun: He remains indigent?
John Strait: He remains now an indigent, but in custody and indigent. He is, if you will pardon the expression, disgustingly indigent.
Harry A. Blackmun: Was he working in the mean time?
John Strait: I beg your pardon?
Harry A. Blackmun: Was he working in the mean time?
John Strait: I meant to call Your Honor's attention to the affidavit in forma pauperis, which is part of this Court's records. He submitted a new affidavit as of the filing of the proceeding, the petition for a review by this, by the Sloictor General.
Harry A. Blackmun: (Inaudible)
John Strait: Yes, and at that time, he had been employed for, I believe, a total gross income of $1000 in the previous nine months, all of which was expended at that time and he has not been employed since, which I assume is one of the reasons he got into trouble with his parole status.
Warren E. Burger: Even if awkward in certain respects, except as it relates to the possible aspect of mootness, it has nothing to do with the issues of the case?
John Strait: I agree and for the purposes of custody for 2255 proceedings, the fact that he was either actively on parole or in custody would be sufficient. The indigent --
Harry A. Blackmun: My inquiry is directed toward mootness and I think that has a great deal to do in the case?
John Strait: Yes, I think --
Warren E. Burger: (Inaudible) have nothing to do with the merits?
John Strait: To clarify that matter, I can assert with certainty that the individual is still indigent at this time, and is not, at anytime, during the pendency of his proceedings been other than indigent within the prior definitions of indigency, by case law. Thank you, very much.
Warren E. Burger: You have two minutes left, Mr. Easterbrook. Do you have anything further?
Frank H. Easterbrook: I have nothing further unless the Court has questions.
Warren E. Burger: They are none? Thank you gentlemen. The case is submitted.