Ross v. Moffit, 417 U.S. 600 (1974)

Fundamental Cases in Procedural Law by Adam J. McKee

JUSTICE REHNQUIST delivered the opinion of the Court.

We are asked in this case to decide whether Douglas v. California (1963), which requires appointment of counsel for indigent state defendants on their first appeal as of right, should be extended to require counsel for discretionary state appeals and for applications for review in this Court.  The Court of Appeals for the Fourth Circuit held that such appointment was required by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.


The case now before us has resulted from consolidation of two separate cases, North Carolina criminal prosecutions brought in the respective Superior Courts for the counties of Mecklenburg and Guilford.  In both cases respondent pleaded not guilty to charges of forgery and uttering a forged instrument, and because of his indigency was represented at trial by court-appointed counsel.  He was convicted and then took separate appeals to the North Carolina Court of Appeals, where he was again represented by court-appointed counsel, and his convictions were affirmed.  At this point the procedural histories of the two cases diverge.

Following affirmance of his Mecklenburg Country conviction, respondent sought to invoke the discretionary review procedures of the North Carolina Supreme Court.  His court-appointed counsel approached the Mecklenburg County Superior Court about possible appointment to represent respondent on this appeal, but counsel was informed that the State was not required to furnish counsel for that petition.  Respondent sought collateral relief in both the state and federal courts, first raising his right-to-counsel contention in a habeas corpus petition filed in the United States District Court for the Western District of North Carolina in February 1971.  Relief was denied at that time, and respondent’s appeal to the Court of Appeals for the Fourth Circuit was dismissed by stipulation in order to allow respondent to first exhaust state remedies on this issue. After exhausting state remedies, he reapplied for habeas relief, which was again denied.  Respondent appealed that denial to the Court of Appeals for the Fourth Circuit.

Following affirmance of his conviction on the Guilford County charges, respondent also sought discretionary review in the North Carolina Supreme Court.  On this appeal, however, respondent was not denied counsel but rather was represented by the public defender who had been appointed for the trial and respondent’s first appeal.  The North Carolina Supreme Court denied certiorari.  Respondent then unsuccessfully petitioned the Superior Court for Guilford County for court-appointed counsel to prepare a petition for a writ of certiorari to this Court, and also sought post-conviction relief throughout the state courts.  After these motions were denied, respondent again sought federal habeas relief, this time in the United States District Court for the Middle District of North Carolina.  That court denied relief, and respondent took an appeal to the Court of Appeals for the Fourth Circuit.

The Court of Appeals reversed the two District Court judgments, holding that respondent was entitled to the assistance of counsel at state expense both on his petition for review in the North Carolina Supreme Court and on his petition for certiorari to this Court.  Reviewing the procedures of the North Carolina appellate system and the possible benefits that counsel would provide for indigents seeking review in that system, the court stated:

“As long as the state provides such procedures and allows other convicted felons to seek access to the higher court with the help of retained counsel, there is a marked absence of fairness in denying an indigent the assistance of counsel as he seeks access to the same court.”

This principle was held equally applicable to petitions for certiorari to this Court.  For, said the Court of Appeals, “the same concepts of fairness and equality, which require counsel in a first appeal of right, require counsel in other and subsequent discretionary appeals.”

We granted certiorari to consider the Court of Appeals’ decision in light of Douglas v. California, and apparently conflicting decisions of the Courts of Appeals for the Seventh and Tenth Circuits.  For the reasons hereafter stated we reverse the Court of Appeals.


This Court, in the past 20 years, has given extensive consideration to the rights of indigent persons on appeal.  In Griffin v. Illinois (1956), the first of the pertinent cases, the Court had before it an Illinois rule allowing a convicted criminal defendant to present claims of trial error to the Supreme Court of Illinois only if he procured a transcript of the testimony adduced at his trial.  No exception was made for the indigent defendant, and thus one who was unable to pay the cost of obtaining such a transcript was precluded from obtaining appellate review of asserted trial error.  Mr. Justice Frankfurter, who cast the deciding vote, said in his concurring opinion:

“. . .  Illinois has decreed that only defendants who can afford to pay for the stenographic minutes of a trial may have trial errors reviewed on appeal by the Illinois Supreme Court.”

The Court in Griffin held that this discrimination violated the Fourteenth Amendment.

Succeeding cases invalidated similar financial barriers to the appellate process, at the same time reaffirming the traditional principle that a State is not obliged to provide any appeal at all for criminal defendants.  The cases encompassed a variety of circumstances but all had a common theme.  For example, Lane v. Brown (1963) involved an Indiana provision declaring that only a public defender could obtain a free transcript of a hearing on a coram nobis application.  If the public defender declined to request one, the indigent prisoner seeking to appeal had no recourse.  In Draper v. Washington (1963), the State permitted an indigent to obtain a free transcript of the trial at which he was convicted only if he satisfied the trial judge that his contentions on appeal would not be frivolous.

The appealing defendant was in effect bound by the trial court’s conclusions in seeking to review the determination of frivolousness, since no transcript or its equivalent was made available to him.  In Smith v. Bennett (1961), Iowa had required a filing fee in order to process a state habeas corpus application by a convicted defendant, and in Burns v. Ohio (1959) the State of Ohio required a $20 filing fee in order to move the Supreme Court of Ohio for leave to appeal from a judgment of the Ohio Court of Appeals affirming a criminal conviction.  Each of these state-imposed financial barriers to the adjudication of a criminal defendant’s appeal was held to violate the Fourteenth Amendment.

The decisions discussed above stand for the proposition that a State cannot arbitrarily cut off appeal rights for indigents while leaving open avenues of appeal for more affluent persons.  In Douglas v. California (1963), however, a case decided the same day as Lane and Draper the Court departed somewhat from the limited doctrine of the transcript and fee cases and undertook an examination of whether an indigent’s access to the appellate system was adequate.  The Court in Douglas concluded that a State does not fulfill its responsibility toward indigent defendants merely by waiving its own requirements that a convicted defendant procure a transcript or pay a fee in order to appeal, and held that the State must go further and provide counsel for the indigent on his first appeal as of right.  It is this decision we are asked to extend today.

Petitioners in Douglas, each of whom had been convicted by a jury on 13 felony counts, took appeals as of right to the California District Court of Appeal.  No filing fee was exacted of them, no transcript was required in order to present their arguments to the Court of Appeal, and the appellate process was therefore open to them.  Petitioners, however, claimed that they not only had the right to make use of the appellate process, but were also entitled to court-appointed and state-compensated counsel because they were indigent.  The California appellate court examined the trial record on its own initiative, following the then-existing rule in California, and concluded that “no good whatever could be served by appointment of counsel.” It therefore denied petitioners’ request for the appointment of counsel.

This Court held unconstitutional California’s requirement that counsel on appeal would be appointed for an indigent only if the appellate court determined that such appointment would be helpful to the defendant or to the court itself.  The Court noted that under this system an indigent’s case was initially reviewed on the merits without the benefit of any organization or argument by counsel.  By contrast, persons of greater means were not faced with the preliminary “ex parte examination of the record,” but had their arguments presented to the court in fully briefed form.  The Court noted, however, that its decision extended only to initial appeals as of right, and went on to say:

“We need not now decide whether California would have to provide counsel for an indigent seeking a discretionary hearing from the California Supreme Court after the District Court of Appeal had sustained his conviction . . . or whether counsel must be appointed for an indigent seeking review of an appellate affirmance of his conviction in this Court by appeal as of right or by petition for a writ of certiorari which lies within the Court’s discretion.  But it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long as the result does not amount to a denial of due process or an `invidious discrimination.’ Absolute equality is not required; lines can be and are drawn and we often sustain them.”

The precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.  Neither Clause by itself provides an entirely satisfactory basis for the result reached, each depending on a different inquiry which emphasizes different factors.  “Due process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated.  “Equal protection,” on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.  We will address these issues separately in the succeeding sections.


Recognition of the due process rationale in Douglas is found both in the Court’s opinion and in the dissenting opinion of Mr. Justice Harlan.  The Court in Douglas stated that “when an indigent is forced to run this gantlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure.”  Mr. Justice Harlan thought that the due process issue in Douglas was the only one worthy of extended consideration, remarking: “The real question in this case, I submit, and the only one that permits of satisfactory analysis, is whether or not the state rule, as applied in this case, is consistent with the requirements of fair procedure guaranteed by the Due Process Clause.”

We do not believe that the Due Process Clause requires North Carolina to provide respondent with counsel on his discretionary appeal to the State Supreme Court.  At the trial stage of a criminal proceeding, the right of an indigent defendant to counsel is fundamental and binding upon the States by virtue of the Sixth and Fourteenth Amendments.  But there are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt.  To accomplish this purpose, the State employs a prosecuting attorney who presents evidence to the court, challenges any witnesses offered by the defendant, argues rulings of the court, and makes direct arguments to the court and jury seeking to persuade them of the defendant’s guilt.  Under these circumstances “reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.”

By contrast, it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or jury below.  The defendant needs an attorney on appeal not as a shield to protect him against being “hauled into court” by the State and stripped of his presumption of innocence, but rather as a word to upset the prior determination of guilt.  This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant’s consent, it is clear that the State need not provide any appeal at all.  The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way.  Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty.  That question is more profitably considered under an equal protection analysis.


Language invoking equal protection notions is prominent both in Douglas and in other cases treating the rights of indigents on appeal.  The Court in Douglas, for example, stated:

“Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”

The Court in Burns v. Ohio, stated the issue in the following terms:

“Once the State chooses to establish appellate review in criminal cases, it may not foreclose indigents from access to any phase of that procedure because of their poverty.”

Despite the tendency of all rights “to declare themselves absolute to their logical extreme,” there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court.  The Fourteenth Amendment “does not require absolute equality or precisely equal advantages,” nor does it require the State to “equalize economic conditions.”  It does require that the state appellate system be “free of unreasoned distinctions,” and that indigents have an adequate opportunity to present their claims fairly within the adversary system.  The State cannot adopt procedures which leave an indigent defendant “entirely cut off from any appeal at all,” by virtue of his indigency, or extend to such indigent defendants merely a “meaningless ritual” while others in better economic circumstances have a “meaningful appeal.”  The question is not one of absolutes, but one of degrees.  In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court.


The North Carolina appellate system, as are the appellate systems of almost half the States, is multitiered, providing for both an intermediate Court of Appeals and a Supreme Court.  The Court of Appeals was created effective January 1, 1967, and, like other intermediate state appellate courts, was intended to absorb a substantial share of the caseload previously burdening the Supreme Court.  In criminal cases, an appeal as of right lies directly to the Supreme Court in all cases which involve a sentence of death or life imprisonment, while an appeal of right in all other criminal cases lies to the Court of Appeals.  A second appeal of right lies to the Supreme Court in any criminal case “(1) which directly involves a substantial question arising under the Constitution of the United States or of this State, or (2) in which there is a dissent. . . .” All other decisions of the Court of Appeals on direct review of criminal cases may be further reviewed in the Supreme Court on a discretionary basis.

The statute governing discretionary appeals to the Supreme Court is N.C. Gen. Stat. 7A-31 (1969).  This statute provides, in relevant part, that “in any cause in which appeal has been taken to the Court of Appeals . . . the Supreme Court may in its discretion, on motion of any party to the cause or on its own motion, certify the cause for review by the Supreme Court, either before or after it has been determined by the Court of Appeals.”  The statute further provides that “if the cause is certified for transfer to the Supreme Court after its determination by the Court of Appeals, the Supreme Court reviews the decision of the Court of Appeals.”  The choice of cases to be reviewed is not left entirely within the discretion of the Supreme Court but is regulated by statutory standards.  Subsection (c) of this provision states:

“In causes subject to certification under subsection (a) of this section, certification may be made by the Supreme Court after determination of the cause by the Court of Appeals when in the opinion of the Supreme Court (1) The subject matter of the appeal has significant public interest, or (2) The cause involves legal principles of major significance to the jurisprudence of the State, or (3) The decision of the Court of Appeals appears likely to be in conflict with a decision of the Supreme Court.”

Appointment of counsel for indigents in North Carolina is governed by N.C. Gen. Stat. 7A-450.  These provisions, although perhaps on their face broad enough to cover appointments such as those respondent sought here, have generally been construed to limit the right to appointed counsel in criminal cases to direct appeals taken as of right.  Thus, North Carolina has followed the mandate of Douglas v. California, and authorized appointment of counsel for a convicted defendant appealing to the intermediate Court of Appeals, but has not gone beyond Douglas to provide for appointment of counsel for a defendant who seeks either discretionary review in the Supreme Court of North Carolina or a writ of certiorari here.


The facts show that respondent, in connection with his Mecklenburg County conviction, received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals.  Thus, prior to his seeking discretionary review in the State Supreme Court, his claims had “once been presented by a lawyer and passed upon by an appellate court.”  We do not believe that it can be said, therefore, that a defendant in respondent’s circumstances is denied meaningful access to the North Carolina Supreme Court simply because the State does not appoint counsel to aid him in seeking review in that court.

At that stage he will have, at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case.  These materials, supplemented by whatever submission respondent may make pro se, would appear to provide the Supreme Court of North Carolina with an adequate basis for its decision to grant or deny review.

We are fortified in this conclusion by our understanding of the function served by discretionary review in the North Carolina Supreme Court.  The critical issue in that court, as we perceive it, is not whether there has been “a correct adjudication of guilt” in every individual case, but rather whether “the subject matter of the appeal has significant public interest,” whether “the cause involves legal principles of major significance to the jurisprudence of the State,” or whether the decision below is in probable conflict with a decision of the Supreme Court.

The Supreme Court may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect, since a decision which appears incorrect may nevertheless fail to satisfy any of the criteria discussed above.  Once a defendant’s claims of error are organized and presented in a lawyerlike fashion to the Court of Appeals, the justices of the Supreme Court of North Carolina who make the decision to grant or deny discretionary review should be able to ascertain whether his case satisfies the standards established by the legislature for such review.

This is not to say, of course, that a skilled lawyer, particularly one trained in the somewhat arcane art of preparing petitions for discretionary review, would not prove helpful to any litigant able to employ him.  An indigent defendant seeking review in the Supreme Court of North Carolina is therefore somewhat handicapped in comparison with a wealthy defendant who has counsel assisting him in every conceivable manner at every stage in the proceeding.  But both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas.  And the fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required.  The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.  We think respondent was given that opportunity under the existing North Carolina system.


Much of the discussion in the preceding section is equally relevant to the question of whether a State must provide counsel for a defendant seeking review of his conviction in this Court.  North Carolina will have provided counsel for a convicted defendant’s only appeal as of right, and the brief prepared by that counsel together with one and perhaps two North Carolina appellate opinions will be available to this Court in order that it may decide whether or not to grant certiorari.  This Court’s review, much like that of the Supreme Court of North Carolina, is discretionary and depends on numerous factors other than the perceived correctness of the judgment we are asked to review.

There is also a significant difference between the source of the right to seek discretionary review in the Supreme Court of North Carolina and the source of the right to seek discretionary review in this Court.  The former is conferred by the statutes of the State of North Carolina, but the latter is granted by statute enacted by Congress.  Thus the argument relied upon in the Griffin and Douglas cases, that the State having once created a right of appeal must give all persons an equal opportunity to enjoy the right, is by its terms inapplicable.  The right to seek certiorari in this Court is not granted by any State, and exists by virtue of federal statute with or without the consent of the State whose judgment is sought to be reviewed.

The suggestion that a State is responsible for providing counsel to one petitioning this Court simply because it initiated the prosecution which led to the judgment sought to be reviewed is unsupported by either reason or authority.  It would be quite as logical under the rationale of Douglas and Griffin, and indeed perhaps more so, to require that the Federal Government or this Court furnish and compensate counsel for petitioners who seek certiorari here to review state judgments of conviction.  Yet this Court has followed a consistent policy of denying applications for appointment of counsel by persons seeking to file jurisdictional statements or petitions for certiorari in this Court.  In the light of these authorities, it would be odd, indeed, to read the Fourteenth Amendment to impose such a requirement on the States, and we decline to do so.


We do not mean by this opinion to in any way discourage those States which have, as a matter of legislative choice, made counsel available to convicted defendants at all stages of judicial review.  Some States which might well choose to do so as a matter of legislative policy may conceivably find that other claims for public funds within or without the criminal justice system preclude the implementation of such a policy at the present time.  North Carolina, for example, while it does not provide counsel to indigent defendants seeking discretionary review on appeal, does provide counsel for indigent prisoners in several situations where such appointments are not required by any constitutional decision of this Court.  Our reading of the Fourteenth Amendment leaves these choices to the State, and respondent was denied no right secured by the Federal Constitution when North Carolina refused to provide counsel to aid him in obtaining discretionary appellate review.

The judgment of the Court of Appeals’ holding to the contrary is


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Last Modified:  08/21/2019


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