Cite as: 528 U. S. 259 (2000)
Souter, J., dissenting
been given counsel, and we should not look to what sort of appeal might have ensued if an appellant's lawyer had flagged the points that came closest to appealable issues. Such a result is equally consistent with our cases holding a violation of due process to be complete when a defendant is denied a right to the appeal he is otherwise entitled to pursue. See Peguero v. United States, 526 U. S. 23, 30-31 (1999) (O'Connor, J., concurring); Rodriquez, supra, at 330.6
This conclusion was anticipated in Penson, in which we dealt with the violation of Anders standards when counsel was allowed to withdraw without supplying the court with his best effort to identify appealable weaknesses, and prior to any judicial determination that counsel had missed nothing in finding no arguable appellate issues in the record. The appellate court in Penson subsequently identified arguable issues but thought the appointment of new counsel unnecessary after finding that any legitimately appealable issues would be losers. This Court recognized a presumption of prejudice without more, for purposes of both Strickland and Chapman v. California, 386 U. S. 18 (1967). See Penson, 488 U. S., at 85-86. Although the state court's failure to appoint counsel after identifying issues made Penson an egregious case, id., at 83, the failure of advocacy and consequent constructive absence of counsel was clear even at the point at which the lawyer withdrew, id., at 82, and the presumption of prejudice applicable then is applicable in this case now.
There is practical sense as well as good theory behind this presumption of prejudice, for any requirement to demonstrate prejudice specifically would often place federal judges on habeas in highly precarious positions calling for judgments that state judges are generally better qualified to
6 Although this habeas proceeding began on February 24, 1994, and is therefore not governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), see Lindh v. Murphy, 521 U. S. 320 (1997), the result should be no different in a post-AEDPA case. See infra, at 303.
301
Page: Index Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 NextLast modified: October 4, 2007