United States v. MacCollom

*319 Mr. Justice Rehnquist

announced the judgment of the Court in an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Powell join.

This case presents the question of whether the restrictions imposed by 28 U. S. C. § 753 on the availability to an indigent prisoner of a free trial transcript to aid him in preparing a petition for collateral relief are consistent with the Fifth Amendment to the Constitution. The Court of Appeals for the Ninth Circuit, in contrast to every other Court of Appeals which has ruled on the issue, held that such prisoners have an absolute right to a transcript. We reverse.

I

Respondent was convicted of uttering forged currency in violation of 18 U. S. C. § 472 after a jury trial in the United States District Court for the Western District of Washington. On June 3, 1970, he was sentenced to 10 years’ imprisonment. He did not appeal. Nearly two years later respondent, acting pro se, filed in the District Court a paper designated “Motion for Transcript in Forma Pauperis.” This was returned to respondent with the advice that he first had to file a motion pursuant to 28 U. S. C. § 2255 before the court could act on his request for a transcript.

Respondent then filed a “complaint for Declaratory Judgment and Injunctive Relief” in which he alleged that he “intends to move this Court for vacation of his sentence pursuant to 28 U. S. C. § 2255.” He asserted that he was unable to afford a transcript, that a transcript would show that he had not been afforded effective assistance of counsel, and that there was insufficient evidence to support the verdict of guilty. The complaint further alleged that without a transcript respondent would be “unable to frame his arguments for fair and *320 effective review.” The complaint did not elaborate upon respondent’s two asserted grounds for relief.

The District Court treated this pleading as a motion under 28 U. S. C. § 2255, granted respondent leave to proceed in forma pauperis, appointed counsel, and held a hearing. After the hearing the court dismissed the complaint for failure to state a claim upon which relief could be granted. Respondent appealed, and a divided panel of the Court of Appeals reversed, 511 F. 2d 1116 (1974), holding that respondent was entitled to a transcript “in order to assist him in the preparation of a post-conviction motion under 28 U. S. C. [§] 2255.” Id., at 1124.

II

Congress has expressly addressed the question of furnishing transcripts at public expense in 28 U. S. C. § 753 (f), which provides in pertinent part:

“Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U. S. C. [§] 3006A)) or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pau-peris shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. . . .”

The statute thus provides for a free transcript for indigent prisoners asserting a claim under § 2255 if a judge certifies that the asserted claim is “not frivolous” *321 and that the transcript is “needed to decide the issue.” The District Court, by its conclusion that respondent failed to state a claim upon which relief could be granted, implicitly decided one of these two issues against respondent.

The Court of Appeals held that it was not necessary to declare § 753 (f) unconstitutional in order to grant respondent relief. Rather, the court held that the section “does not prohibit courts from . . . requiring the government to supply an imprisoned indigent with a free transcript before he files a § 2255 motion. Such a court order would simply fill a constitutional deficit not addressed by the statute.” (Emphasis added.) 511 F. 2d, at 1119-1120.

This is a novel approach to statutory construction. The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress. Reeside v. Walker, 11 How. 272, 291 (1851). This particular statute contains a limited grant of authority to the courts to authorize the expenditure of public funds for furnishing transcripts to plaintiffs in § 2255 actions. The fact that the statute does not “prohibit” the furnishing of free transcripts in other circumstances is of little significance, since most such statutes speak only in terms of granting authority for the expenditure of federal funds. Where Congress has addressed the subject as it has here, and authorized expenditures where a condition is met, the clear implication is that where the condition is not met, the expenditure is not authorized. Botany Mills v. United States, 278 U. S. 282, 289 (1929); Passenger Corp. v. Passengers Assn., 414 U. S. 453, 458 (1974).1

*322 It is true, as respondent observes, that the statute, as currently written, distinguishes between habeas corpus petitioners and parties proceeding under § 2255 in that only the latter must make a showing of need and nonfrivolousness in order to obtain a free transcript. Thus while it is still true that the “remedy” afforded by § 2255 is “exactly commensurate with that which had previously been available by habeas corpus . . . ,” Hill v. United States, 368 U. S. 424, 427 (1962), the right to pursue that remedy with a free transcript has now been somewhat limited by Congress.2 Respondent argues that this constitutes a suspension of the writ of habeas corpus in violation of Art. I, § 9, cl. 2, of the Constitution.

This argument presupposes, inter alia, that a right to a free transcript is a necessary concomitant of the writ which the Founders declared could not be suspended. This is obviously not the case. The writ of habeas corpus operated until 1944 with no provision for free tran *323 scripts for indigents. See 58 Stat. 6, 28 U. S. C. § 9a (1940 ed., Supp. IV). Congress, when in that year it authorized free transcripts for the first time, could certainly have limited the authorization to nonfrivolous cases where a need had been shown. If Congress could have thus limited the writ directly without “suspending” it, it follows that it may do so indirectly. The only possible objection is a Fifth Amendment due process-equal protection claim, to which we now turn.

Ill

The Court of Appeals did not technically decide this constitutional issue, since it thought it had discovered a lacuna in the statute, but its reference to a “constitutional deficit” suggests its view on this question. Respondent urges that if the statute is read as we now read it, it violates both the Due Process Clause of the Fifth Amendment and his right to “equal protection.”

The Due Process Clause of the Fifth Amendment does not establish any right to an appeal, see Griffin v. Illinois, 351 U. S. 12, 18 (1956) (plurality opinion), and certainly does not establish any right to collaterally attack a final judgment of conviction.3 In this case respondent was granted a statutory right of appeal without payment of costs if he were an indigent, and had he pursued that right § 753 (f) would have authorized the use of public funds to furnish him a transcript of the trial proceedings without any further showing on his part. Having forgone this right, which existed by force of statute only, he may not several years later successfully assert a due process right to review of his conviction and thereby obtain a free transcript on his own terms as an ancillary consti *324 tutional benefit. The conditions which Congress had imposed on obtaining such a transcript in § 753 (f) are not “so arbitrary and unreasonable ... as to require their invalidation,” Douglas v. California, 372 U. S. 353, 365 (1963) (Harlan, J., dissenting); rather they “comport with fair procedure,” id., at 357 (Court’s opinion).

Although the statutory conditions established in § 753 (f) with respect to furnishing a free transcript to mov-ants in § 2255 proceedings are therefore consistent with the due process requirements of the Fifth Amendment, it is undoubtedly true that they place an indigent in a somewhat less advantageous position than a person of means. But neither the Equal Protection Clause of the Fourteenth Amendment, nor the counterpart equal protection requirement embodied in the Fifth Amendment, guarantees “absolute equality or precisely equal advantages,” San Antonio School Dist. v. Rodriguez, 411 U. S. 1, 24 (1973). In the context of a criminal proceeding they require only “an adequate opportunity to present [one’s] claims fairly . . . .” Ross v. Moffitt, 417 U. S. 600, 616 (1974).

In Douglas v. California, supra, the Court held that the State must provide counsel for an indigent on his first appeal as of right. But in Ross v. Moffitt, supra, we declined to extend that holding to a discretionary second appeal from an intermediate appellate court to the Supreme Court of North Carolina. We think the distinction between these two holdings of the Court is of considerable assistance in resolving respondent’s equal protection claim. Respondent in this case had an opportunity for direct appeal, and had he chosen to pursue it he would have been furnished a free transcript of the trial proceedings. But having forgone that right, and instead some years later having sought to obtain a free transcript in order to make the best case he could in a *325 proceeding under § 2255, respondent stands in a different position.

The Court has held that when a State grants a right to collateral review, it may not deny the right to an indigent simply because of inability to pay the required filing fee, Smith v. Bennett, 365 U. S. 708 (1961). There is no such impediment here; respondent was permitted to proceed in forma pauperis in his § 2255 action. The Court has also held that a State may not confide to the public defender the final decision as to whether a transcript shall be available to the criminal defendant who collaterally attacks his conviction, Lane v. Brown, 372 U. S. 477 (1963). There the Court observed that the state provision “confers upon a state officer outside the judicial system power to take from an indigent all hope of any appeal at all.” Id., at 485.

The congressional statute governing the furnishing of free transcripts to plaintiffs in § 2255 actions has no such infirmity. The decision as to the provisions of the transcript at public expense is made initially by an official at the very heart of the judicial system — a district judge in the judicial district in which the § 2255 plaintiff was tried. The district court has the power to order a free transcript furnished if it finds that the “suit ... is not frivolous and that the transcript is needed to decide the issue presented . . . .” 28 U. S. C. § 753 (f).

We think that the formula devised by Congress satisfies the equal protection component of the Fifth Amendment. Respondent chose to forgo his opportunity for direct appeal with its attendant unconditional free transcript. This choice affects his later equal protection claim as well as his due process claim. Equal protection does not require the Government to furnish to the indigent a delayed duplicate of a right of appeal with attendant free transcript which it offered in the first *326 instance, even though a criminal defendant of means might well decide to purchase such a transcript in pursuit of relief under § 2255. The basic question is one of adequacy of respondent’s access to procedures for review of his conviction, Ross v. Moffitt, supra, and it must be decided in the light of avenues which respondent chose not to follow as well as those he now seeks to widen. We think it enough at the collateral-relief stage that Congress has provided that the transcript be paid for by public funds if one demonstrates to a district judge that his § 2255 claim is not frivolous, and that the transcript is needed to decide the issue presented.

Respondent urged in oral argument that if trial counsel had done a poor job of representing a criminal defendant, such counsel might well urge the defendant to forgo his right of appeal in order to prevent a claim of ineffective assistance of counsel from being raised on the appeal. It is certainly conceivable that such a state of facts might exist, notwithstanding the fidelity to the interest of their clients demonstrated repeatedly by the overwhelming majority of the members of the legal profession. But § 753 (f) does not require that a § 2255 plaintiff must prove his claim in order to obtain a transcript, but only that he convince the district court that such claim is not frivolous. Had the District Court here been confronted not with merely a conclusory allegation, but with some factual allegations indicating a denial of respondent’s Sixth Amendment right to counsel, together with an additional explicit assertion that trial counsel had urged respondent to forgo his appeal, that court might have concluded that such a claim was not frivolous, and further decided that a free transcript should be furnished pursuant to § 753 (f) .4

*327 But that is not our case. Respondent made only a naked allegation of ineffective assistance of counsel. Since any discussion he may have had with his trial counsel as to the desirability of appeal would not normally appear in the transcript of proceedings at trial, the furnishing of such transcript would not have aided him in refreshing his recollection of such discussions. The failure to flesh out this aspect of respondent’s claim of ineffective assistance of counsel, then, is not likely to have been cured by a transcript.

We think this is an area of the law where the opinions of the courts of appeals are entitled to particular weight, since they represent not only expositions of federal and constitutional law, but also expressions of essentially practical judgment on questions which those courts must confront far more than we do. The fact that with the exception of the decision presently under review they have unanimously concluded that the conditions establishéd by § 753 (f) for the furnishing of a free transcript do not violate the Fifth Amendment is significant.5 A practical reason for their conclusion is well expressed by Judge Haynsworth in United States v. Shoaf, 341 F. 2d 832 (CA4 1964), in which he said for that court:

“The usual grounds for successful collateral attacks upon convictions arise out of occurrences out *328 side of the courtroom or of events in the courtroom of which the defendant was aware and can recall without the need of having his memory refreshed by reading a transcript. He may well have a need of a transcript [to support his claim] but rarely, if ever, ... to become aware of the events or occurrences which constitute a ground for collateral attack,” Id., at 835.6

We conclude that the fact that a transcript was available had respondent chosen to appeal from his conviction, and remained available on the conditions set forth in § 753 to an indigent proceeding under § 2255, afforded respondent an adequate opportunity to attack his conviction. To hold otherwise would be to place the indigent defendant in a more favorable position than a similarly situated prisoner of some, but not unlimited, means, who presumably would make an evaluation much like that prescribed in § 753 (f) before he spent his own funds for a transcript.

“[T]he fact that a particular service might be of benefit to an indigent defendant does not mean that the service is constitutionally required. The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Ross v. Moffitt, 417 U. S., at 616.

*329 The judgment of the Court of Appeals for the Ninth Circuit is

Reversed.

Our Brother SteveNs would construe the pertinent part of § 753 (f) to “make transcripts available almost automatically in *322 § 2255 proceedings . . . post, at 338. We think such a construction would do violence to the intent of Congress which clearly appears from the language of that section, supra, at 320. Congress did in that section make transcripts available automatically on direct appeal, but in the same section limited their availability in § 2255 motions to cases where the trial judge certifies that the § 2255 suit is not frivolous and that the transcript is needed to decide the issue presented by the suit. Our Brother Stevens advances what may well be very sound policy reasons for furnishing free transcripts as a matter of course to § 2255 plaintiffs, as well as to convicted defendants pursuing direct appeals. But it is plain from a reading of § 753 (f) that these considerations have not yet commended themselves to Congress.

The difference is not as great as it might appear to be, however, because habeas corpus petitioners who wish to proceed in forma pauperis must still overcome a “nonfrivolous” barrier under 28 U. S. C. § 1915. E. g., Kitchens v. Alderman, 376 F. 2d 262 (CA5 1967); Blair v. California, 340 F. 2d 741 (CA9 1965).

The constitutional treatment of habeas corpus, of course, is not contained in the Due Process Clause, but in Art. I, § 9, cl. 2, of the Constitution.

Since a § 2255 claim is usually presented to the trial judge he will likely have an independent recollection of counsel’s performance *327 which may well lead him to conclude that a movant’s claim is nonfrivolous.

E. g., Ellis v. Maine, 448 F. 2d 1325 (CA1 1971); United States ex rel. Buford v. Henderson, 524 F. 2d 147 (CA2 1975); United States v. Shoaf, 341 F. 2d 832 (CA4 1964); United States v. Herrera, 474 F. 2d 1049 (CA5 1973); Hoover v. United States, 416 F. 2d 431 (CA6 1969); United States ex rel. Nunes v. Nelson, 467 F. 2d 1380 (CA9 1972) (habeas corpus); Taylor v. United States, 238 F. 2d 409 (CA9 1956) (§ 2255 motion); Hines v. Baker, 422 F. 2d 1002 (CA10 1970).

This opinion and other aspects of this question were thoroughly discussed shortly after the 1965 amendment to § 753 (f) in Black-mun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F. R. D. 343 (1967).