Ross v. Moffitt 417 U.S. 600, 94 S. Ct. 2437, 41 L. Ed.2d 341 (1974)
Ross was arrested and charged
with forgery in two independent cases.
In both trials he was
appointed legal counsel because he was indigent.
Both Trial Courts convicted
Ross. He appealed.
The Appellate Courts affirmed.
The State did not appoint a
legal counsel to help Ross write a petition for certiorari for his appeal
to the North Carolina Supreme Court or the US Supreme Court. Both courts
denied his petition.
Ross filed a writ of habeus
corpus in Federal Court claiming that he had been denied due process because of the lack of appointed legal counsel
for his appeals.
The Federal Trial Court denied
the writ. Ross appealed.
The Federal Appellate Court
reversed and found that Ross was entitled to appointment of legal counsel
for his petitions. The prosecutor appealed.
The US Supreme Court reversed
the Appellate Court and found that the State was not required to provide
Ross with legal counsel.
The US Supreme Court found
that a State may not dispense with the trial stage without the
defendant's consent, but it is not required to provide for an appeal at
The Court noted that
convicted criminals don't have to appeal, it is completely discretionary.
Therefore, there is no requirement for the State to provide counsel for
In the Court's opinion, the
main difference is that in a trial, the defendant is innocent and the
prosecution is attempting to make him guilty. In an appeal, the
defendant is guilty and is trying to prove himself innocent.
The Court agreed that Ross
was probably handicapped in his appeal. However, that handicap was much smaller
at the Supreme Court level than it would have been if he didn't have a
lawyer at the Trial level or the Appellate level. The appointed counsel
asked the right questions at the trial, and prepared an appellate brief
for Ross, so a lot of the foundation for the appellate process had
already been completed.
A Supreme Court argument is
the exact same argument a petitioner makes in the Appellate Court. You
don't have to come up with a new legal basis to win a Supreme Court
appeal, you only have to present the same appeal you showed to the
Compare to Douglas v.
California (372 U.S. 353 (1963))
which said that you do have a right to counsel on your first
appeal (aka your "appeal as of
Right"). The Court distinguishes that case here by saying that it
makes less of a difference.
In addition, State Supreme
Courts are not required to hear a
case, unlike Appellate Court who are required to hear all appeals.
Although, wouldn't that
imply that it is more important to have a counsel when applying for a
writ of certiorari?