Jones v. Barnes


DOCKET NO.: 81-1794
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 463 US 745 (1983)
ARGUED: Feb 22, 1983
DECIDED: Jul 05, 1983

Barbara D. Underwood - on behalf of the Petitioners
Miss Barbara D. Underwood - on behalf of the respondent
Sheila Ginsberg Riesel - on behalf of the Respondent

Facts of the case


Media for Jones v. Barnes

Audio Transcription for Oral Argument - February 22, 1983 in Jones v. Barnes

Warren E. Burger:

We'll hear arguments next in Jones against Barnes.

Miss Underwood, you may proceed whenever you are ready.

Miss Barbara D. Underwood:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether a state criminal defendant is entitled to federal habeas corpus relief on the grounds that his assigned appellate counsel failed to raise every non frivolous issue requested by the Defendant.

The Court of Appeals for the Second Circuit held that he is and created a pro se rule that appellant counsel is automatically ineffective if he fails to raise an issue that meets two tests.

One, it has some possible merit, however slight; and, two, it was requested by the Defendant on a very generous construction of the term "request".

That decision is wrong for several reasons.

It upsets state convictions without any showing of prejudice to the Defendant.

It is not required by any principle or constitutional law or sound judicial administration.

It undermines rather than promoting effective assistance of appellate counsel, and it is an unmanageable, unworkable rule that requires courts to probe the attorney client relationship after the fact and distinguish requests that would trigger the rule from suggestions or discussions or things mentioned in passing that would not.

Sandra Day O'Connor:

May I ask a preliminary question?

The question presented in the cert petition is whether the 6th and 14th Amendments require assigned defense counsel to raise every non frivolous issue requested by the Defendant.

What I would like to ask is whether the questions, whether the Respondent, in fact, asked his lawyer to raise the issues and whether they were non frivolous are questions before us?

The briefs talk about them a lot but it was hard for me to understand that those questions were properly here.

Miss Barbara D. Underwood:

Well, the question... whether a particular question is non frivolous, being a question of law, it seems to me, is necessarily before this Court and the predicate for determining whether the rule stated by the Second Circuit is... was appropriately announced in this case.

The question of whether a request was made is in part a factual question and while that matter is discussed at some length in the brief, it is unnecessary for this Court to explore the intricacies of the attorney client relationship and decide whether a request was made in the ordinary sense of that term.

Sandra Day O'Connor:

Should we just assume that requests were made and get on with the other issues?

Miss Barbara D. Underwood:

Yes, except for this point.

The Second Circuit gave a particular meaning to request, and it would be misleading to understand the Second Circuit rule as applying only to that case in which there was a square conflict between attorney and client in which an explicit request was made and that request was refused.

The Second Circuit's definition of request for purposes of its rule encompasses much more.

Byron R. White:

But, nevertheless, they predicated their bottom line on the grounds that in their understanding there had been a request?

Miss Barbara D. Underwood:

Well, they found--

Byron R. White:

As a matter of fact, an insistence.

Miss Barbara D. Underwood:

--Well, they characterized what had happened as a request and as an insistence, that is correct.

They also recite what they imply that from.

It must at least be said that what they found was an implied request and implied insistence.

William H. Rehnquist:

Well, since so much seems to turn on this, Miss Underwood, could you briefly summarize what, in fact, did happen?

Miss Barbara D. Underwood:


What the record shows is that before appellate counsel was appointed, the Defendant drafted a pro se brief which included a number of issues.

After his appellate counsel was appointed, he sent that brief to counsel.