Schreiner v. United States/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

Schreiner has a statutory right to the assistance of a lawyer in drafting his petition for certiorari. As I indicated in Doherty v. United States, 404 U.S. 28, 92 S.Ct. 175, 30 L.Ed.2d 149, that right is not conditioned on counsel's appraisal of the merits of the petition. No conditions are attached to rights under Fed.Rule Crim.Proc. 44 and the Criminal Justice Act of 1964. This view was adopted by the Judicial Conference's Committee to Implement the Criminal Justice Act:

'[C]ounsel appointed on appeal should advise the defendant of     his right to initiate a further review by the filing of a      petition for certiorari, and to file such petition, if      requested by the defendant.' Report of the Committee to      Implement the Criminal Justice Act, 36 F.R.D. 285, 291      (1965).

Moreover, the Tenth Circuit has implemented this suggestion. See 1A West's Federal Forms, Supreme Court, § 488 (B. Boskey ed. 1969).

There may well be instances where the remedy sought is inappropriate-e. g., an effort to obtain mandamus where the duty is only discretionary. The statute does not, however, permit an indigent's right to be conditioned upon the fortuity of whether a lawyer believes this Court will grant his petition. We ourselves often have difficulty making that prophecy.