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Nickols v. Gagnon

December 21, 1971

O. D. NICKOLS, PETITIONER-APPELLANT,
v.
JOHN R. GAGNON, RESPONDENT-APPELLEE



Major, Senior Circuit Judge, Fairchild and Stevens, Circuit Judges.

Author: Stevens

STEVENS, Circuit Judge.

A Wisconsin jury found appellant guilty of murder. Counsel appointed to represent him on appeal advised the State Supreme Court that he could find no reversible error in the record and was permitted to withdraw; the conviction was affirmed. In collateral proceedings, State courts and the court below rejected appellant's claim that he did not have the effective assistance of counsel guaranteed by the Fourteenth Amendment as interpreted in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493. His contention requires us to review the facts of this case, the holding of Anders, and the import of the Anders opinion.

I.

The evidence of appellant's guilt included the testimony of an eyewitness, corroborated by a pathologist's findings, and a confession which appellant made when he went to the police station on his own initiative to report the death, details of which were corroborated by physical evidence which he called to the attention of the police.

The attorney appointed to prosecute the appeal did not prepare an advocate's brief. He did, however, prepare a detailed letter which reflected a professional evaluation of the record and the points which might have been asserted as error. With respect to each, matter demonstrating the absence of merit was identified.*fn1 The letter reflects the kind of professional analysis which a trained advocate might make as a predicate to the preparation of an appellate brief; it did not, however, contain any argument urging reversal. The letter concluded with the statement:

"Consequently, I can not, in good conscience pursue an appeal on the state of the record, and ask to be relieved of further representation of the defendant."

Appellant contends that he received less effective representation than a wealthy litigant could have obtained and, therefore, Anders entitles him to a fresh appeal handled by another attorney. We, therefore, examine the Anders case.

II.

In 1957, Anders was found guilty of possession of marijuana, then a felony in California, and given an indeterminate sentence of six months to ten years. He appealed as an indigent; the appellate court granted his request for a free transcript and appointed counsel. That attorney informed the court that he would not file a brief because in his opinion there was no merit to the appeal. His letter read:

"Dear Judge Van Dyke:

"This is to advise you that I have received and examined the trial transcript of Charles Anders as it relates to his conviction of the crime of possession of narcotics.

"I will not file a brief on appeal as I am of the Opinion that there is no merit to the appeal. I have visited and communicated with Mr. Anders and have explained my views and ...


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