BRIAN K. ALLISON, Appellant,
STATE OF IOWA, Appellee.
review from the Iowa Court of Appeals.
from the Iowa District Court for Keokuk County, Myron Gookin,
Petitioner requests further review of a court of appeals'
decision affirming the dismissal of his petition for
E. Breckenridge of Breckenridge Law, P.C., Ottumwa, for
J. Miller, Attorney General, Kelli Huser and Doug Hammerand,
Assistant Attorneys General, and John Schroeder, County
Attorney, for appellee.
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).
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.
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.
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.
Factual and Procedural Background.
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.
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,
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.
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.
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.
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.
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.
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
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.
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.
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.
Standard of Review.
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).
Discussion of Iowa Code Section 822.3 and the Right to
Effective Assistance of Counsel.
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?
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
The Winding and Nuanced Road of United States Supreme Court
Right-to-Counsel Cases Involving PCR.
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).
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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)).
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.
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.
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
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.
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.
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.
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.
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