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Allison v. State

Supreme Court of Iowa

June 29, 2018

BRIAN K. ALLISON, Appellant,
v.
STATE OF IOWA, Appellee.

          On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Keokuk County, Myron Gookin, Judge.

          Petitioner requests further review of a court of appeals' decision affirming the dismissal of his petition for postconviction relief.

          Robert E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for appellant.

          Thomas J. Miller, Attorney General, Kelli Huser and Doug Hammerand, Assistant Attorneys General, and John Schroeder, County Attorney, for appellee.

          APPEL, Justice.

         In this case, we consider whether the three-year statute of limitations in Iowa Code section 822.3 (2015) applies where a postconviction-relief (PCR) petitioner files an untimely second petition for PCR, alleging counsel for his timely filed first petition for PCR was ineffective. The district court held the second petition's allegation that the first postconviction counsel was ineffective did not supply a ground of fact to avoid the three-year statutory bar. The court of appeals affirmed, relying upon our previous decision in Dible v. State, 557 N.W.2d 881, 883, 886 (Iowa 1996) (en banc), abrogated in part on other grounds by Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003).

         A second question raised in the case is whether the district court properly dismissed allegations in the amended petition filed in the second PCR action. The amended petition alleged newly discovered evidence-namely, that the victim and other witnesses recanted their testimony. The amended petition further alleged that there had been a change in the law regarding admissibility of expert testimony on the credibility of child victims. The district court recognized the amended petition had been filed, observed that the amended petition did not affect the "core basis" of the claim in the case, and denied relief. On appeal, the State contended that the petitioner failed to preserve the issues in the amended petition because the district court never granted leave to amend.

         The court of appeals affirmed on two grounds. The court held that the claims raised in the amended petition were not preserved. The court also found that the allegations in the petition were too vague to provide a basis for relief.

         In order to answer the first question, we revisit the holding in Dible. For the reasons expressed below, we vacate the decision of the court of appeals and reverse the judgment of the district court. On the second question, we find that the claims raised in the amended petition were adequately preserved. Rather than rule on the adequacy of the amended petition on appeal, we remand the case to the district court for further proceedings on the amended petition.

         I. Factual and Procedural Background.

         A jury convicted Brian Allison of three counts of sexual abuse in the third degree in 2011. He appealed his conviction. In his direct appeal, Allison argued the district court erred in not granting him a new trial based upon the weight of the evidence under Iowa Rule of Criminal Procedure 2.24(2)(b)(6). Among other things, Allison noted the victim, his stepdaughter, initially denied the abuse, behaved normally during the time of the alleged abuse, returned to Allison's home after the abuse ended, and gave inconsistent testimony about the abuse.

         On July 11, 2012, the court of appeals affirmed Allison's convictions. Although the court held the claim was not preserved, the court addressed Allison's weight-of-the-evidence claim in the context of ineffective assistance of counsel. Noting Allison's attack on the victim's credibility, the court cited expert testimony that it was not unusual for children to delay reporting abuse, to return to their abuser after the alleged acts, and to forget the details of the abuse. In addition, the court remarked that several witnesses testified about inappropriate physical contact, specifically Allison and the victim holding hands, the victim sitting on Allison's lap, Allison rubbing the victim's back, and Allison and the victim being together in bed under a blanket with Allison wearing boxer shorts and the victim wearing "skimpy shorts and a low-cut shirt." The court concluded that under the circumstances, there was not a reasonable probability that the district court would have granted the motion for a new trial if the verdict-contrary-to-the-weight-of-the-evidence claim had been preserved. As a result, the court of appeals affirmed the convictions. Procedendo issued on September 6, 2012.

         On March 6, 2013, Allison filed his first petition for PCR. Allison claimed that his trial counsel was ineffective for failing to investigate the bias of one of the jurors. At the hearing on the first PCR action, Allison and his son testified they observed a juror appear to wave and acknowledge Allison's ex-wife Tina, the mother of the victim. The district court denied relief, noting, among other things, that no evidence was offered showing the relationship between the juror and the mother and that there was no evidence of prejudice.

         Allison appealed. On appeal, Allison claimed his PCR counsel did not properly investigate the claim of juror bias and, like his trial counsel, provided him with ineffective assistance. He claimed that if his PCR counsel had adequately investigated, he could have established there was a reasonable probability the result of the trial would have been different if the potentially biased juror had been removed.

         On September 10, 2015, the court of appeals affirmed the denial of relief. The court explained that in order to support a claim of ineffective assistance of counsel, Allison was required to show he suffered prejudice from the presence of a biased juror in deliberations. The court noted that the PCR record did not establish the identity of the juror; whether the juror actually waived at the victim's mother; the relationship, if any, between the juror and the victim's mother; and whether any juror was in fact biased. The court of appeals held that Allison was not entitled to relief based on ineffective assistance of counsel without developing the underlying claim of juror bias.

         On November 5, Allison, proceeding pro se, filed a second petition for PCR. In his second petition, Allison alleged that his counsel in his first PCR action was ineffective for failing to develop adequately the record in connection with the juror-bias issue. According to Allison, "[a] brief investigation could have revealed the name of the juror and her familiarity with Tina Allison." Allison also noted that his counsel in the first PCR proceeding could have called Tina as a witness and developed the relationship between Tina and the juror.

         The district court appointed counsel for Allison. The State filed a motion to dismiss. In its motion, the State noted procedendo in Allison's direct appeal was issued on September 6, 2012, and Allison's second petition was filed on November 5, 2015. The State asserted that because the second petition was filed more than three years after his convictions became final, it was barred by Iowa Code section 822.3. The State relied upon Dible, 557 N.W.2d at 886. In Dible, a 5-4 majority of this court held that ineffective assistance of counsel was not a "ground of fact" under Iowa Code section 822.3 that would allow a PCR petition to be filed more than three years after a conviction became final. Id.

         Allison, now represented by counsel, resisted the motion to dismiss and filed an amended second petition for PCR. The amended petition reprised the claim of ineffective assistance for failure to investigate the allegation of juror bias, noting that the claim "extends beyond merely ineffective assistance." According to the motion, "[b]y utterly failing to do [his] job[]," Allison's previous PCR counsel "effectively render[ed Allison] with no post-conviction relief."

         The amended petition also raised new issues. It asserted there was "reason to believe that the victim and other witnesses have recanted their testimony thus taking away the factual basis for [Allison's] conviction." The amended petition also claimed "[t]hat changes in the law and particularly the admissibility of expert testimony that tends to invade the [province] of the jury and attempting to bolster the credibility of child victims, would result in a change of verdict." An unreported hearing was held before the district court.

         The district court granted the State's motion to dismiss. In its order, the court recognized that Allison filed his amended petition. The court further acknowledged Allison's claim that his amended petition cured the statute-of-limitations bar raised by the State. Yet the court concluded, "[T]he amended petition does not change the core basis for [Allison's] claim for post-conviction relief, namely, ineffective assistance of counsel by post-conviction counsel and ineffective assistance of post-conviction appellate counsel." The court ruled that such ineffective assistance was not a basis for avoiding the three-year statute of limitations in Iowa Code section 822.3.

         Allison appealed. We transferred the case to the court of appeals. The court held that it was not at liberty to overturn Dible and that Dible was controlling on the issue of ineffective assistance of counsel. The court dismissed the remaining claims in Allison's amended petition on the ground that Allison failed to preserve error in the district court. The court also concluded that the additional allegations in the amended petition were insufficient to survive a motion to dismiss.

         II. Standard of Review.

         Generally, we review a grant of a motion to dismiss a PCR petition for correction of errors at law. Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012). But when a PCR petitioner claims ineffective assistance of PCR counsel, our review is de novo. Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).

         III. Discussion of Iowa Code Section 822.3 and the Right to Effective Assistance of Counsel.

         A. Introduction. Iowa Code section 822.3 generally provides a three-year statute of limitations for PCR claims. Iowa Code § 822.3. Section 822.5 provides a right to assistance of PCR counsel, which we have held logically implies a right to effective assistance of PCR counsel. Lado, 804 N.W.2d at 250; Dunbar v. State, 515 N.W.2d 12, 14-15 (Iowa 1994). This case raises a difficult question: What happens when a PCR petitioner alleges that his criminal trial attorney was ineffective, further alleges that his attorney in his first PCR proceeding was ineffective, and now seeks to have the underlying claim-which the first PCR attorney was allegedly ineffective in presenting-heard on the merits outside the three-year time frame of section 822.3?

         The easy path would be to simply state a smooth-as-ice conclusion that there is no right to counsel in PCR. Yet close analysis reveals substantial constitutional and statutory issues. So the question is this: Is the smooth-as-ice approach strong enough to withstand weighty constitutional and statutory right-to-counsel challenges?

         B. Statutory Framework. Chapter 822 generally provides the framework for obtaining PCR in Iowa. A PCR proceeding is commenced by filing an application with the appropriate district court. Iowa Code § 822.3. If the applicant is unable to pay for the costs and expenses of legal representation, such expenses are to be made available to the applicant. Id. § 822.5. "All rules and statutes applicable in civil proceedings including pretrial and discovery procedures are available to the parties" in a PCR proceeding. Id. § 822.7.

         "All grounds for relief available to an applicant . . . must be raised in the applicant's original, supplemental or amended application." Id. § 822.8. The provision further states,

Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence . . . may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.

Id.

         The generally applicable statute of limitations is provided in Iowa Code section 822.3. This section provides, "All . . . applications must be filed within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued." Id. § 822.3.

         C. Right to Counsel in PCR Proceedings. The United States Constitution provides that there is a right to counsel "[i]n all criminal prosecutions." U.S. Const. amend. VI. The right-to-counsel provision of the Iowa Constitution has different language than the United States Constitution. Article I, section 10 of the Iowa Constitution provides, "In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right . . . to have the assistance of counsel." Iowa Const. art. I, § 10. Unlike the federal counterpart, the Iowa constitutional provision, on its face, extends beyond criminal prosecutions to other cases involving life or liberty. See id.

         The United States Supreme Court has ruled that the right to counsel under the Federal Constitution does not extend to proceedings for PCR. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993 (1987). In spite of the federal nature of Finley's ruling and the presence of a vigorous dissent by Justice Brennan, PCR applicants in two reported cases have simply conceded that Finley means that a constitutional right to counsel is categorically not available in PCR actions and that the same is true under the Iowa Constitution, a sweeping concession not challenged or examined by the Iowa court. See Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006); Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988). Wise and Fuhrmann also do not consider the meaning of the "cases involving the life, or liberty" clause of article I, section 10 or its potential application to PCR proceedings.

         In any event, Iowa Code section 822.5 has been held to amount to a statutory right to counsel in PCR proceedings. Patchette v. State, 374 N.W.2d 397, 398 (Iowa 1985) (discussing Iowa Code section 663A.5, now section 822.5). Further, we have held the statutory grant of a postconviction applicant's right to counsel necessarily implies that counsel be effective. Id. Thus, where the only counsel provided to an applicant has been ineffective, a violation of the statute occurs.

         D. Positions of the Parties. On appeal, Allison recognizes that he must confront the case of Dible. In Dible, a narrow majority of this court held that a successive PCR application filed outside the three-year statute of limitations in Iowa Code section 822.3 was untimely and that ineffective assistance of counsel was not a "ground of fact" sufficient to extend the running of the limitations period. 557 N.W.2d at 886.

         Allison claims that Dible is a case "with questionable value" as precedent and that Dible "needs to be revisited and reexamined." He notes that part of the holding in Dible was abrogated in Harrington, 659 N.W.2d at 521. Allison further notes that the dissent in Dible questioned a bright-line approach that produced an unfair result. 557 N.W.2d at 886 (McGiverin, C.J., dissenting). Allison asserts that because his first PCR petition was "timely filed [but] was never given a proper opportunity to be heard because his counsel failed to perform essential duties," his current PCR petition should not be dismissed.

         On the question of dismissal of his additional claims in the second PCR proceeding, Allison points out that, generally, the rules of civil procedure apply to PCR actions. See Iowa Code § 822.7. Under the rules of civil procedure, Allison argues, he is entitled to a hearing to attempt to prove the allegations in his amended petition. Allison asserts the new grounds alleged in his amended petition are not time-barred under Iowa Code section 822.3.

         The State responds that Dible is good law and controls the outcome of the ineffective-assistance-of-counsel claim in this case. According to the State, Dible remains good law on the point that ineffective assistance of postconviction counsel is not a "ground of fact" to avoid the three-year statue of limitations in section 822.3. See 557 N.W.2d at 886 (majority opinion). The State stresses that the rationale underlying Dible remains strong. The purpose of the statute of limitations in section 822.3 is to reduce stale claims and cause "a sense of repose in the criminal justice system." Id. The State asserts that Allison did, in fact, raise the juror-bias claim within the three-year limitations period and did not prevail. The fact that he alleges he lost the juror-bias challenge in his first PCR proceeding because of his PCR counsel's ineffective assistance is of no moment to the State.

         On the new issues raised in Allison's amended second petition, the State argues that error was not preserved because the district court never issued an order allowing amendment. Even if error was preserved, the State asserts, the claims were vague allegations insufficient to avoid dismissal. The State indicates that with respect to the claim of newly discovered evidence, the petition does not identify which witnesses recanted or identify when the newly discovered evidence was uncovered. On the issue of new law, the State claims that Allison has not showed that any change in the law occurred in the past three years, as required for the exception to the statute of limitations. Allison did not identify any new statute or change in the caselaw or a particular witness or testimony that would be affected by the allegedly new law. The State emphasizes that because the postconviction hearing in this case was not recorded, the court should presume that no additional evidence beyond the pleadings was provided to the district court.

         E. The Winding and Nuanced Road of United States Supreme Court Right-to-Counsel Cases Involving PCR.

         1. Introduction. Allison does not expressly raise a federal or state constitutional challenge to the dismissal of his second application for PCR. Yet constitutional considerations must inform our approach to the proper interpretation of Iowa Code section 822.3. See, e.g., State v. Iowa Dist. Ct., 843 N.W.2d 76, 85 (Iowa 2014) ("The doctrine of constitutional avoidance suggests the proper course in the construction of a statute may be to steer clear of 'constitutional shoals' when possible."); Simmons v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa 2010) ("If fairly possible, a statute will be construed to avoid doubt as to constitutionality."). The notion that a statute should be interpreted to avoid doubt as to its constitutionality is a principle that applies even when the parties do not explicitly claim a right to relief based on constitutional provisions. Roth v. Evangelical Lutheran Good Samaritan Soc'y, 886 N.W.2d 601, 611 (Iowa 2016) (interpreting statutory language guided by principle that statutes should be construed to avoid constitutional questions in case involving only statutory claims); In re Guardianship of Kennedy, 845 N.W.2d 707, 711-14 (Iowa 2014) (interpreting a statute to avoid doubts as to constitutionality when constitutional argument not raised).

         In this statutory interpretation case, it is important to understand the constitutional context in which this case arises. For example, did Allison have a constitutional or statutory right to counsel in his first PCR action? If so, is he constitutionally or statutorily entitled to a remedy for ineffective assistance of counsel, which is a constitutional deficiency ordinarily imputed to the state? If so, would application of the statute of limitations in Iowa Code section 822.3 to his second PCR action effectively prevent him from obtaining a remedy for the constitutional or statutorily established right-to-counsel violation? In order to understand the constitutional implications of our statutory interpretation of section 822.3 in this case, we canvass equal protection, due process, and right-to-counsel cases. As will be seen below, the constitutional terrain has been fragmented and highly contested.

         2. Navigating the constitutional shoals: early federal caselaw related to right to counsel, equal protection, and due process in criminal cases. Decades ago, the United States Supreme Court developed the right of a criminal defendant to counsel in a series of landmark cases. The fountainhead case is, of course, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932). In Powell, seven black men charged with the rape of two white women were convicted and given death sentences when the state failed to provide counsel until the morning of trial. Id. at 49-51, 53 S.Ct. at 57. The Supreme Court held that the defendants were entitled to the meaningful assistance of counsel in their defense in a state murder prosecution. Id. at 73, 53 S.Ct. at 65. The Supreme Court in Powell utilized many themes, including the notion that "[e]ven the intelligent and educated layman . . . requires the guiding hand of counsel at every step in the proceedings against him." Id. at 69, 53 S.Ct. at 64.

         Powell was only the beginning. Although limited to the facts of the case, its principles were potentially protean. Nonetheless, expansion of the right to counsel beyond Powell proved gradual. For instance, while in Johnson v. Zerbst, the Supreme Court extended the right to counsel to federal prosecutions for felonies generally, 304 U.S. 458, 463, 469, 58 S.Ct. 1019, 1022-23, 1025 (1938), in Betts v. Brady, the Court declined to hold categorically that criminal defendants were entitled to counsel, 316 U.S. 455, 461-62, 62 S.Ct. 1252, 1256 (1942), overruled by Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797 (1963).

         While the Supreme Court moved cautiously with respect to expansion of the Sixth Amendment right to counsel, other constitutional theories were available, in effect, to extend the right to counsel in criminal proceedings. In Griffin v. Illinois, the Supreme Court considered whether a criminal defendant could be required to pay for transcripts in order to appeal a criminal conviction. 351 U.S. 12, 13, 76 S.Ct. 585, 588 (1956). The Griffin Court emphasized that the state is not required by the United States Constitution to "provide appellate courts or a right to appellate review at all." Id. at 18, 76 S.Ct. at 590. But, the Court held, if the state in its discretion established a right of appeal, it could not administer its appellate process in a discriminatory manner and still be consistent with the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Id. at 19, 76 S.Ct. at 591. Griffin introduced the notion that access to the courts cannot be provided on a discriminatory basis based on wealth, a notion which was soon applied in the context of the right of an indigent defendant to appointed counsel.

         In 1963, the Supreme Court decided two seminal right-to-counsel cases that built on and extended the reach of prior precedents. In Gideon, the Court, in applying the Sixth Amendment right to counsel to the states pursuant to the Due Process Clause of the Fourteenth Amendment, departed from the notion that right to counsel was afforded on a case-by-case basis. 372 U.S. at 343-44, 83 S.Ct. at 796. Instead, the Gideon Court established the categorical rule that a criminal defendant facing serious crimes was entitled to the assistance of counsel in all state court cases. Id. at 345, 83 S.Ct. at 797.

         In a companion case, Douglas v. California, the Supreme Court considered a challenge to a California rule of criminal procedure wherein a court would engage in an ex parte examination to determine whether an appeal merited the appointment of counsel. 372 U.S. 353, 354-55, 83 S.Ct. 814, 815 (1963). The Douglas Court held that denying an indigent defendant appointed counsel on a first appeal as a matter of right infringed upon the "equality demanded by the Fourteenth Amendment." Id. at 357-58, 83 S.Ct. at 816-17. The Court reasoned the California scheme, which required an indigent defendant to run a procedural gauntlet in order to obtain appointed counsel, did not comport with fair procedure. Id. at 357, 83 S.Ct. at 816. According to the Douglas Court, a rich man could require the court to listen to a lawyer in making its decision on the merits while a poor person could not do so. Id. at 357, 83 S.Ct. at 817. As noted in Douglas, where the record is unclear or errors are hidden, the right of appeal for an indigent defendant thus becomes "a meaningless ritual" while the rich defendant has "a meaningful appeal." Id. at 358, 83 S.Ct. at 817. Although utilizing the theories of due process and equal protection, the Douglas Court, like in Powell and Gideon, emphasized the importance of the assistance of counsel and minimized the ability of indigent defendants to proceed effectively on a pro se basis. Id. at 355-57, 83 S.Ct. at 815-16.

         Yet Gideon and Douglas's emphases on the need for trained counsel and the limited abilities of pro se defendants did not carry the day nearly a decade later in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437 (1974). In Ross, the Supreme Court considered whether there was a right to appointed counsel for discretionary state appeals or certiorari petitions to the Supreme Court. Id. at 602-03, 94 S.Ct. at 2440. By a 6-3 majority, the Court concluded there was no right to appointed counsel for discretionary appeals. Id. at 618-19, 94 S.Ct. at 2447-48. The Ross majority stated that an indigent defendant could file an application for discretionary review pro se by simply following the briefing prepared by counsel in the prior appeal of right. Id. at 615, 94 S.Ct. at 2446. Nevertheless, the majority qualified its ruling by prohibiting the state from adopting procedures that leave indigent defendants" 'entirely cut off from any appeal at all' by virtue of . . . indigency." Id. at 612, 94 S.Ct. at 2445 (quoting Lane v. Brown, 372 U.S. 477, 481, 83 S.Ct. 768, 771 (1963)). The question, according to the Ross majority, was "not one of absolutes but one of degrees." Id.

         The Ross dissenters, led by Justice Douglas, emphasized that an application for discretionary appeal, such as certiorari before the Supreme Court, has technical requirements that are hazards for the untrained. Id. at 620-21, 94 S.Ct. at 2448-49 (Douglas, J., dissenting). Further, the dissenters noted the factors that a court may deem relevant for discretionary review are not within the normal knowledge of an indigent appellant. Id. at 621, 94 S.Ct. at 2449. The Ross dissenters simply did not buy the notion that imprisoned indigent defendants are in a position to meaningfully develop applications for discretionary review by filing, without the assistance of counsel, a cut-and-paste job based on prior briefing. See id. at 620-21, 94 S.Ct. 2448-49.

         Instead of extending the right to counsel to habeas proceedings generally, the Supreme Court held in Bounds v. Smith that in order to provide inmates without counsel with access to the courts, state authorities are required to provide inmates with adequate law libraries or adequate assistance from persons trained in law. 430 U.S. 817, 830-32, 97 S.Ct. 1491, 1499-500 (1977). The constitutional right of access to the courts requires providing state prisoners with some form of assistance but not necessarily a lawyer. Id. at 831-32, 97 S.Ct. at 1499-500.

         3. Finley and Murray: developing the contours of right to counsel in PCR. The first recent United States Supreme Court case specifically considering the question of whether a defendant has a right to counsel in PCR proceedings is Finley. In Finley, an indigent petitioner, who lost her direct appeal, filed a petition for PCR raising "the same issues that the Supreme Court of Pennsylvania had rejected on the merits" on direct appeal. 481 U.S. at 553, 107 S.Ct. at 1992. The trial court had denied relief, but the Pennsylvania Supreme Court reversed, holding the petitioner was entitled to appointed counsel under state law. Id. at 553, 107 S.Ct. at 1992. The trial court then appointed trial counsel, but trial counsel moved to withdraw from the case without complying with the procedures in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400 (1967). Finley, 481 U.S. at 553-54, 107 S.Ct. at 1992-93. The trial court approved appointed counsel's motion to withdraw without application of Anders's procedures and dismissed the petition for PCR. Id. at 553, 107 S.Ct. at 1992.

         The petitioner obtained new counsel, who appealed the dismissal. Id. On appeal, the Pennsylvania Superior Court found counsel's withdrawal without application of Anders's procedures was unconstitutional. Id. at 553-54, 107 S.Ct. at 1992. The Pennsylvania Superior Court remanded the case to the trial court for further proceedings. Id. at 554, 107 S.Ct. at 1992.

         By a 6-3 majority, the Finley Court stated, "We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions, and we decline to so hold today." Id. at 555, 107 S.Ct. at 1993 (citation omitted). The Court emphasized the procedural posture of the case, noting "[o]ur cases establish that the right to appointed counsel extends to the first appeal of right, and no further." Id.

         The Finley majority rejected claims that the Griffin-Douglas type of equal protection and due process required the appointment of counsel in the case. Id. at 554-55, 107 S.Ct. at 1993. On the due process argument, the Finley Court emphasized that the prisoner had, in fact, been provided an opportunity to assert the presumption of innocence and attack the conviction on direct appeal. Id. at 555, 107 S.Ct. at 1993. Accordingly, due process did not require appointment of counsel when used "as a sword to upset the prior determination of guilt." Id. at 555-56, 107 S.Ct. at 1993 (quoting Ross, 417 U.S. at 610-11, 107 S.Ct. at 2444 (majority opinion)).

         With respect to equal protection, the Finley majority emphasized that PCR is "even further removed from the criminal trial than is discretionary direct review," for which counsel is not required under federal law. Id. at 556-57, 107 S.Ct. at 1994. The Court stressed that PCR "is not part of the criminal proceeding itself, and it is in fact considered to be civil in nature." Id. at 557, 107 S.Ct. at 1994; see Fay v. Noia, 372 U.S. 391, 423-24, 83 S.Ct. 822, 841 (1963), overruled in part on other grounds by Wainwright v. Sykes, 433 U.S. 72, 85, 97 S.Ct. 2497, 2505 (1977). The Finley Court emphasized the ability of prisoners to proceed pro se in PCR, noting that defendants who have had the benefit of a trial and direct appeal had access to the trial record and appellate briefs and opinions. 481 U.S. at 557, 107 S.Ct. at 1994.

         In a dissent, Justice Brennan emphasized that the applicant in the case had a mandatory, state-provided right to appointed counsel and, as a result, a right to effective assistance of counsel. Id. at 562-63, 107 S.Ct. at 1997 (Brennan, J., dissenting). Justice Brennan argued the right to effective assistance, once granted, cannot be "withdrawn in a manner inconsistent with equal protection and due process." Id. at 567, 107 S.Ct. at 1999. According to Justice Brennan, it would be fundamentally unfair to deny indigents an adequate opportunity to present their claims fairly in PCR proceedings. Id. at 568, 107 S.Ct. at 2000. Further, Justice Brennan asserted that equal protection requires appointed counsel to comply with Anders's requirements. Id. at 567-68, 107 S.Ct. at 2000.

         Obviously, the Finley case produced controversy among the justices. There were, however, clear limitations in the Finley majority opinion. In the first paragraph of the opinion, the Finley majority emphasized that the prisoner "raised the same issues that the Supreme Court of Pennsylvania had rejected on the merits." Id. at 553, 107 S.Ct. at 1992 (majority opinion). And the Finley majority later noted that "in this case," the United States Constitution does not command a different result. Id. at 556, 107 S.Ct. at 1994.

         These passages make clear that the Finley majority did not determine whether the Federal Constitution requires appointment of counsel in PCR proceedings where the issues presented were not decided on the merits on direct appeal. Indeed, the entire rationale of Finley is based on the notion that the indigent defendant had her claims heard on the merits in at least one appellate forum, thereby shifting the case from one involving an appeal of a conviction to one attacking a conviction already examined once and found valid.

         The next United States Supreme Court case in the procession of right-to-counsel cases is Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765 (1989). In Murray, Virginia death row inmates brought a 42 U.S.C. § 1983 action against various state officials, alleging that the state's failure to provide them with appointed counsel in PCR proceedings denied their constitutional right of access to the courts. Id. at 4, 109 S.Ct. at 2767 (plurality opinion). The federal district court held the inmates were entitled to relief. Id. at 6, 109 S.Ct. at 2768. The district court cited three special considerations supporting this result, namely, the limited amount of time petitioners had to prepare petitions, the complexity of death penalty cases, and the impact that the shadow of impending death would have on their ability to do legal work. Id. at 4-5, 109 S.Ct. at 2767.

         The district court also rejected Virginia's assertions that it had provided assistance to death row inmates by other means. Id. at 5, 109 S.Ct. at 2768. The district court found Virginia's approach of providing "unit attorneys" in various penal institutions, who did not actually represent inmates, was "too limited." Id. While Virginia courts had discretion to appoint counsel at a later stage of PCR proceedings for death row inmates, the process of discretionary appointment did not provide "continuous assistance of counsel." Id. at 6, 109 S.Ct. at 2768.

         The United States Court of Appeals for the Fourth Circuit, sitting en banc, affirmed the district court. Id. The Fourth Circuit held the district court's special considerations amounted to findings of fact on the question of death-row inmates' access to the courts, a question not considered in Finley. Id. at 6-7, 109 S.Ct. at 2768. The Fourth Circuit cited Bounds, 430 U.S. 817, 97 S.Ct. 1491, where the Supreme Court held a prisoner's right of access to the courts requires the state to furnish a prison library in order to prepare petitions for judicial relief. Murray, 492 U.S. at 7, 109 S.Ct. at 2768.

         The Supreme Court could not muster a majority opinion in Murray. The plurality opinion, written by Chief Justice Rehnquist, generally found that the approach in Finley was dispositive. Id. at 10, 109 S.Ct. at 2770. It declined to hold that a different approach should apply to death-penalty cases. Id. The ...


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