IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                    ______________________________

                              NO. 91-2281

                    ______________________________

BILLY ROY MOSS
                                                 Petitioner-Appellee,
versus

JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
                                                 Respondent-Appellant,



           Appeal from the United States District Court
                for the Southern District of Texas



                            (May 22, 1992)

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, District
Judge.1

LITTLE, DISTRICT JUDGE:

     Appellee Billy Roy Moss seeks federal habeas corpus relief.

The district court granted Moss partial habeas relief based on its

finding that Moss received ineffective assistance of appellate

counsel in violation of Anders v. California, 

, 

(1967).     Additionally, the court made a determination

that Moss's application was not an abuse of the writ of habeas

corpus.   Appellant James A. Collins, on behalf of the Texas

Department of Criminal Justice (hereinafter the State), appeals

     1
       District Judge of the Western District of Louisiana,
sitting by designation.
both elements of the district court's decision.             For the reasons

set forth below, we affirm the district court's ruling that Moss

has not abused the writ, and we reverse the court's determination

that Moss received ineffective assistance of counsel.

                                I. Facts

           Billy Roy Moss was charged with the felony offenses of

aggravated robbery and unlawful possession of a firearm for a 1977

holdup of a liquor store in Houston, Texas.        During the holdup Moss

pistol whipped the store's manager.          Separate trials for each

offense were held in the 228th District Court of Harris County,

Texas.   In August of 1977 Moss was convicted of aggravated robbery

and sentenced to ninety-nine years in prison.          In October of the

same year Moss was convicted of unlawful possession of a firearm by

a felon and sentenced to life imprisonment. The penalties for both

of   Moss's    convictions   were    enhanced    by   two    prior     felony

convictions.    The Texas Court of Criminal Appeals affirmed these

convictions in June of 1978.        Moss v. State, Nos. 58, 613 and 58,

614 (Tex. Crim. App. June 14, 1978).

     Moss filed two petitions for habeas relief in the Texas state

court, but both were denied.        Moss then filed his first petition

for federal writ of habeas corpus on 4 October 1979.           Moss filed a

second   petition   for   federal   habeas   corpus   with    the    Southern

District of Texas on 9 December 1985.           The district court ruled

that the second filing was an abuse of the writ.            On appeal, this

court affirmed in part and reversed in part, and remanded the case

for a determination as to whether Moss had actual knowledge of the


                                     2
legal significance of the facts underlying his second petition at

the time when his first petition was filed.        Moss v. Lynaugh, 

(5th Cir. 1987).

     After an evidentiary hearing before a magistrate, a report and

recommendation issued suggesting that habeas relief be granted in

part and denied in part, and that Moss's convictions be set aside

unless the Texas appellate court grants an out-of-time appeal

within 90 days.   The district court adopted the recommendations of

the magistrate and issued a judgment granting Moss partial habeas

relief.    The state appeals that judgment.

      II.    The Record of the Hearing before the Magistrate

     Upon commencing the hearing, the magistrate declared that the

issue of abuse of writ would not be addressed and that he had

determined that the Moss had not abused the writ.         Preserving its

right on appeal, the State entered a timely objection.           The report

and recommendation states:

     After reviewing all of the documents filed in this case,
     after reviewing the state court records filed with the
     court in this case, and after hearing the testimony of
     Moss, the Court concludes that, even though Moss may have
     known the existence of certain operative facts, he
     certainly   had   insufficient   grasp   of   the   legal
     significance of those facts to merit a finding that he
     abused the writ. Moss, who is virtually illiterate . .
     . had no intention of withholding issues to harass
     respondent or to piecemeal his litigation.

     The    magistrate's   report   also   finds   that   Moss    received

ineffective assistance of appellate counsel in violation of Anders

v. California, 

, 

(1967).           The report

stated that Moss was denied his right as an indigent to "be

furnished the trial record and be allowed time by the appellate

                                    3
court to raise any points that he chooses." (citing 

).   This finding was based on stipulations delivered at

the evidentiary hearing that revealed that Moss had not been

permitted to review his appeal records and that he did not receive

the opportunity to file a pro se brief before his conviction was

affirmed.

       The report also stated that, other than the Anders violation,

"[a]ll of the asserted grounds for relief advanced to date by Moss

in his various petitions are either utterly lacking in merit or are

without any factual basis for raising."     Further, the magistrate

found that the appointed counsel's briefs "marginally" complied

with    the   requirements   of   Anders.   Additionally,   but   of

significance, the magistrate noted that appellate counsel did not

move to withdraw as attorney for Moss.

         The State argued that under Lockhart v. McCotter, 

(5th Cir. 1986), Moss's petition should be denied because he

did not show prejudice, i.e., but for counsel's alleged errors

there is a reasonable probability that the conviction would be

reversed on appeal.   The magistrate responded that the question of

prejudice would effectively be presumed--that Moss need not show

specific acts of unprofessional conduct to be entitled to relief on

an Anders violation, even though no nonfrivolous issues had yet

been raised.    The magistrate also stated that Penson v. Ohio, 

, 

(1988), which directed that a prejudice

analysis is inapplicable in the case of an Anders violation,

preempts application of Lockhart.


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                             III.   Abuse of Writ

     The ruling that Moss has not abused the writ of habeas corpus

will be reversed only for abuse of discretion. Shouest v. Whitley,

, 207 (5th Cir. 1991).            In this case, the district

court appears to have done exactly as the November 1987 remand

order directed:       it made a determination as to whether Moss had

abused the writ process by filing a second habeas corpus petition.

Review of that issue is, however, unnecessary because of our

determination on the merits of Moss's petition.

        IV.     Ineffective Assistance of Appellate Counsel

     A criminal defendant may not be denied representation on

appeal based on appellate counsel's bare assertion that an appeal

has no merit.    Anders v. California, 

, 

,

(1967).       Should appellate counsel move to withdraw

from representation, he must file a brief advising the court of

anything that might arguably support the appeal. 

Likewise, before it considers the case on its merits without the

assistance of counsel, the appeals court must first find that there

are no nonfrivolous issues for appeal. 

directs that "[a] copy of counsel's brief should be furnished to

the indigent, and time allowed him to raise any points that he

chooses." 

  does    not   dispute   that   Moss   was   denied   the

opportunity to file a pro se brief on appeal, the State argues that

Moss must show prejudice -- i.e., a reasonable probability that his

conviction would be reversed on appeal due to certain untoward


                                       5
professional   deficiencies    of    his     counsel   --   as    required   by

Strickland v. Washington, 

, 

, 

(1984).    The magistrate dismissed the State's argument in the

light of Penson v. Ohio 

, 

, 

(1988), which held that the prejudice showing of Strickland was

inappropriate where the appointed counsel is allowed to withdraw

without meeting the Anders requirements.

     The   Supreme    Court   in    Penson    reiterated    the    rule   that

"`[a]ctual or constructive denial of counsel altogether is legally

presumed to result in prejudice.'" 

(citing Strickland v.

Washington, 

, 

, 

(1984)).

In Penson, appointed counsel prematurely withdrew, leaving the

accused without counsel while the case was under appellate review.

Discussing the minimum briefing requirements set forth in Anders,

the Court stated that only after the appellate counsel has filed

the Anders brief and "the appellate court finds no nonfrivolous

issue for appeal, may the court proceed to consider the appeal on

the merits without the assistance of counsel." 

     Our task here, therefore, is simply to determine whether

actual or constructive denial of appellate counsel has occurred.

Specifically, we must inquire whether Moss has been denied counsel

by the lack of opportunity to review the record and file a pro se

brief on appeal.     Conversely, if Moss has not been denied counsel,

Strickland requires that he show a reasonable probability that his

conviction would be reversed on appeal but for certain lapses by

his lawyer.    

; see also Ricalday v.


                                      6
Procunier,   

,    205-6    (5th    Cir.    1984);   Hamilton     v.

McCotter, 

, 182 (5th Cir. 1985).                 Both the deficiency

and prejudice aspects of the ineffectiveness inquiry present mixed

questions of law and fact.

     The Fifth Circuit's analysis of the Anders requirements has

focused on two areas: (1) whether counsel has prematurely withdrawn

(before filing an Anders brief, as in Penson); and, (2) whether an

adequate   Anders    brief    was    filed     (advising      the   court    of   any

nonfrivolous issues on appeal).              In Lombard v. Lynaugh, 

(5th Cir. 1989), we concluded that, even where counsel did not

withdraw prematurely, the petitioner was not required to show

Strickland-type prejudice if he "was afforded almost no appellate

representation      whatever,      and   there      were    non-frivolous     appeal

issues." 

(emphasis supplied). The appellate counsel in

Lombard filed an Anders brief that, although it stated that the

appeal was without merit, did not call attention to any of the

arguable issues in the case. 

             The fact that there were

nonfrivolous grounds for appeal was critical to our determination

that counsel's failure to add such grounds to his brief presented

circumstances "sufficiently analogous to those in Penson to prevent

the utilization of the Strickland prejudice test." 

     In this case, an adequate Anders brief was filed.                      The only

possible infirmity here lies in the petitioner not being given the

record and the opportunity to file his own pro se brief.                    However,

the record   does     not    indicate    how     counsel     provided   less      than

effective assistance. The report states that Moss "was returned to


                                         7
the Texas Department of Corrections on December 5, 1978, without

having been permitted to review the records . . . , [and that]

[p]etitioner did not receive the opportunity to file a pro se brief

before his convictions were affirmed."            This suggests that counsel

may not have reviewed the record with Moss or advised him that he

might file a pro se brief.        But was he required to do so?

     Under these circumstances, we find that counsel's actions did

not in any way deny Moss his right to appellate counsel.                 First,

counsel did not withdraw.         Indeed, the magistrate observed in the

report that the instant case differs from Penson in that "appellate

counsel never withdrew as petitioner's counsel and the Court of

Criminal Appeals, after review of the record, determined the

appeals    were    `wholly   frivolous     and    without   merit.'"      After

reviewing the records in both of Moss's cases, appellate counsel

filed an Anders brief and awaited the decision of the Texas Court

of Criminal Appeals.         Given these facts, it cannot be said that

Moss was denied actual assistance of counsel; nor was he left

unrepresented during his appeal.

     Second, and most importantly, Moss had no nonfrivolous issues

to raise on appeal.2          We have never been presented with any

nonfrivolous      issues   that   could    have   been   asserted   by   Moss's

counsel.    Moreover, even if counsel had delivered the record to

Moss, there would have been little advice he could have given him

     2
        The magistrate's report agrees with the finding of the
Texas Court of Criminal Appeals that Moss's grounds for appeal
were "wholly frivolous and without merit." The magistrate stated
that "[a]ll of the asserted petitions are either utterly lacking
in merit or are without any factual basis for raising."

                                       8
regarding pro se appeal.         These facts push this case finally

outside the rationale of Anders:         to ensure that counsel is not

allowed to withdraw without showing that there are no nonfrivolous

issues for appeal. Penson, 

.           Anders requires that any

request to     withdraw   be   accompanied   by   a   brief   "referring    to

anything in the record that might arguably support an 

.    Anders does not require appointed counsel to create

arguments.   Rather, the issue is whether there are any grounds for

appeal.   If counsel concludes that his client has no nonfrivolous

grounds for appeal after a good faith examination of all of the

procedural and substantive facts, he must indicate it in the brief

and await the court's decision.       Based on counsel's brief and the

record, the appeals court will determine whether counsel has

dispatched his duties; if the court agrees that there are no

nonfrivolous grounds for appeal, nothing further is expected from

appointed counsel by either Anders or its progeny.            The mandatory

requirements of Anders were complied with in this case, and Moss

was not denied the assistance of effective appellate counsel.

Thus, the district court erred in finding that Moss did not need to

show Strickland-type prejudice.

     Given that he has demonstrated no nonfrivolous grounds of

appeal, Moss has clearly not shown a reasonable probability that

his convictions would be overturned had he been given counsel's

brief or allowed time to file his own brief.            Because there has

been no actual or constructive denial of counsel and Moss has not

shown that he was prejudiced by any specified irregularity, the


                                     9
district court erred in granting habeas relief.

     Although we agree with the district court's determination that

Moss did not abuse the writ when he filed a second petition for

habeas corpus, we must reverse the district's court grant of habeas

corpus relief.   For the foregoing reasons, we REVERSE the district

court's grant of petitioner's writ of habeas corpus, and RENDER

judgment denying his petition.




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