A Case for a Constitutional Right to Counsel in Habeas Corpus
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A Case for a Constitutional Right to Counsel
in Habeas Corpus
EMILY GARCIA UHRIG*
[T]o deny adequate review to the poor means that many of them may
lose their life, liberty or property because of unjust convictions which
appellate courts would set aside.... Such a denial is a misfit in a
country dedicated to affording equal justice to all and special privileges
to none in the administration of its criminal law.
-Justice Hugo Black, Griffin v. Illinois'
INTRODUCTION
The right to assistance of counsel for the criminally accused and
convicted facing the potential loss of liberty abides by the following well-
established jurisprudential contours: the Sixth and Fourteenth
Amendments secure the right at trial, which includes all critical stages
of the proceeding, and the Due Process and Equal Protection Clauses of
the Fifth and Fourteenth Amendments guarantee the right to counsel on
the first appeal as of right To the extent the issue has been
contemplated, most courts agree that a constitutionally protected right to
counsel does not extend beyond the first appeal.3 The rationale for
drawing the line at this juncture is that, for any further appeals, the
appellant-petitioner has the benefit of past appellate counsel's work in
identifying, researching, and framing all potentially meritorious issues, as
well as an appellate court's written decision. Thus, he or she need not
conduct original legal research and writing to pursue further appeals,
which typically occur before the respective state supreme court or the
United States Supreme Court.
* Assistant Professor of Law, University of the Pacific, McGeorge School of Law; J.D.,
Stanford Law School, 1991; former Attorney-Advisor of the Office of Legal Counsel, U.S.
Department of Justice and Deputy Federal Public Defender, Central District of California. I am very
grateful for the helpful comments and input of Barbara Babcock, Tamar Birckhead, Karen Burton,
Michael Carter, Lauren Eskenazi, Mary McNamara, Rachael Salcido, Richard Shiffrin, Michael
Vitiello, and Jarrod Wong and the invaluable assistance provided by my research assistant, Joanne
Kirchner.
1. 351 U.S. 12, 19 (1956) (Black, J., plurality opinion).
2. See discussion infra Parts I.A.3-5.
3. See infra Part I.B.
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A Case for a Constitutional Right to Counsel in Habeas Corpus
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