417 U.S. 600 (1974)
Respondent Moffitt was prosecuted in two separate North Carolina cases, one in Mecklenburg County and one in Guilford County.1 In each case he pleaded not guilty to charges of forgery and uttering a forged instrument.2 Because he was indigent, the court appointed counsel to represent him at trial in both prosecutions.3 He was convicted in each case.4
Moffitt took appeals as of right to the North Carolina Court of Appeals in both cases. Court-appointed counsel again represented him on these appeals, and the Court of Appeals affirmed both convictions.5 The procedural paths then diverged between the two cases.6
In the Mecklenburg County case, Moffitt sought discretionary review in the North Carolina Supreme Court.7 His appointed counsel was informed that the state would not provide representation for that petition.8 Moffitt pursued collateral relief in state and federal courts, filing a habeas corpus petition in the United States District Court for the Western District of North Carolina in February 1971.9 After the district court denied relief and his appeal to the Fourth Circuit was dismissed by stipulation to exhaust state remedies, he reapplied for habeas relief, which was again denied, leading to another appeal to the Fourth Circuit.10
In the Guilford County case, Moffitt was represented by the public defender on his petition for discretionary review in the North Carolina Supreme Court.11 After that court denied certiorari, he unsuccessfully sought appointment of counsel from the Superior Court to prepare a petition for a writ of certiorari to the United States Supreme Court.12 Following denial of post-conviction relief in state courts, he filed a habeas petition in the United States District Court for the Middle District of North Carolina.13 That court denied relief, and he appealed to the Fourth Circuit.14
The Fourth Circuit consolidated the two appeals and reversed the district court judgments.15 The Supreme Court granted certiorari to review the decision.16
Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment require appointment of counsel for indigent state defendants seeking discretionary review in the North Carolina Supreme Court?17
The Due Process Clause guarantees fair procedure between the state and the individual.18 The Equal Protection Clause prohibits invidious discrimination that leaves indigents with only a meaningless ritual rather than meaningful access to appeals.19 Griffin v. Illinois and Douglas v. California establish that a state may not erect financial barriers that cut off appellate review for the poor while leaving it open to the affluent.20 Douglas specifically requires counsel on a first appeal as of right because an indigent's claims would otherwise receive only an ex parte examination of the record.21 Those decisions do not require the state to duplicate every resource a wealthy defendant might obtain at later stages.22 A state appellate system satisfies the Fourteenth Amendment when it furnishes counsel for the initial appeal as of right, supplies a trial record and appellate brief, and structures discretionary review around public-interest criteria rather than routine error correction.23
No. Moffitt received appointed counsel at trial and again on his first appeal as of right to the North Carolina Court of Appeals.24 This resulted in a lawyer-prepared brief and an appellate opinion affirming both convictions.25 When he sought discretionary review in the North Carolina Supreme Court, the existing materials supplied the Supreme Court with an adequate basis for applying the statutory criteria.26 Those criteria include significant public interest, major legal principles, or probable conflict with its own decisions.27
The function of that discretionary review is not to ensure a correct adjudication of guilt in every case but to select matters of broader importance.28 Therefore the absence of additional counsel did not single out indigents or render their access meaningless.29 The relative handicap Moffitt faced was far less severe than the complete denial of counsel on a first appeal as of right that Douglas condemned.30
The Due Process and Equal Protection Clauses of the Fourteenth Amendment do not require North Carolina to appoint counsel for an indigent defendant seeking discretionary review in the North Carolina Supreme Court.31
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Justice Douglas dissented and would have affirmed the Fourth Circuit judgment.32 He agreed with Chief Judge Haynsworth that no logical basis exists for differentiating between appeals of right and permissive review in the context of the right to counsel.33 In his view, permissive review in the state's highest court may be predictably the most meaningful review a conviction receives.34
This is especially true on constitutional questions because the intermediate court remains constrained by earlier Supreme Court precedent.35 An indigent defendant forced to prepare a petition for discretionary review without counsel is at a substantial disadvantage compared with a wealthy defendant.36 The technical requirements and specialized factors that courts consider in deciding whether to grant review create this disadvantage.37
Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment require appointment of counsel for indigent state defendants seeking review by certiorari in the Supreme Court of the United States?38
The same due-process and equal-protection principles that govern state appellate review apply.39 Yet the source of the right to seek certiorari in this Court is a federal statute rather than any state-created right.40 Once a state has provided counsel for the only appeal as of right and furnished the resulting brief together with one or more state appellate opinions, the Fourteenth Amendment does not compel the state to supply further counsel.41 The Griffin-Douglas rationale that a state must equalize access to a right it has created does not extend to a federal avenue of review that exists independently of the state's consent.42 This Court has consistently denied applications for appointed counsel to prepare jurisdictional statements or certiorari petitions.43
No. In both the Mecklenburg and Guilford County cases Moffitt had already received the benefit of counsel on his first appeal as of right.44 This produced a brief and appellate opinions that would be available to this Court in deciding whether to grant certiorari.45 The right to seek review here arises from federal statute, not from any North Carolina enactment.46 Therefore the state is not required to equalize opportunities for that federal procedure.47
Requiring the state to furnish counsel would be no more logical than requiring the federal government or this Court itself to provide counsel.48 This Court has never taken that step.49 The existing record and prior briefing therefore afforded Moffitt a meaningful opportunity to seek review without additional state-appointed counsel.50
The Due Process and Equal Protection Clauses of the Fourteenth Amendment do not require North Carolina to appoint counsel for an indigent defendant seeking review by certiorari in the Supreme Court of the United States.51
Related opinions on this issue
Justice Douglas reiterated that the same concepts of fairness and equality requiring counsel on a first appeal of right also require counsel for subsequent discretionary applications.52 He emphasized that an indigent defendant needs the assistance of a lawyer to navigate the specialized and technical requirements of certiorari proceedings.53
Those requirements are not within the normal knowledge of a lay appellant.54 The lawyer who handled the first appeal would be well positioned to prepare or advise on such a petition.55