Rehearing en banc granted by order filed 12/10/96;
published opinion of 10/29/96 is vacated.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BERNARD ERIC MILLER,
Petitioner-Appellant,

v.
                                                                      No. 95-7521
WILLIAM SMITH; ATTORNEY GENERAL
OF THE STATE OF MARYLAND,
Respondents-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-95-891-WN)

Argued: April 1, 1996

Decided: October 29, 1996

Before MURNAGHAN and HAMILTON, Circuit Judges, and
LAY, Senior Circuit Judge of the United States Court of Appeals
for the Eighth Circuit, sitting by designation.

_________________________________________________________________

Reversed and remanded with instructions by published opinion. Judge
Murnaghan wrote the majority opinion, in which Senior Judge Lay
joined. Judge Hamilton wrote a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Laurack Doyle Bray, Washington, D.C., for Appellant.
Evelyn Omega Cannon, Assistant Attorney General, Baltimore,
Maryland, for Appellees. ON BRIEF: J. Joseph Curran, Jr., Attorney
General of Maryland, Kathleen S. Hoke, Assistant Attorney General,
Baltimore, Maryland, for Appellees.

_________________________________________________________________

OPINION

MURNAGHAN, Circuit Judge:

Bernard Eric Miller appeals from the district court's denial of his
petition for a writ of habeas corpus brought pursuant to 28 U.S.C.
§ 2254. In the petition, Miller challenged the State of Maryland's pro-
cedure for providing transcripts to indigents for appeal purposes and
alleged that he was denied a free trial transcript in violation of his fed-
eral constitutional rights. Because the application of Maryland Rules
deprives Miller of the protections guaranteed by the U.S. Constitu-
tion, we reverse the district court's judgment and remand for action
consistent with this opinion.

I

Following his conviction for felony murder in Maryland state
court, Miller attempted to obtain a transcript of his trial in order to
perfect a direct appeal.1 As an indigent, Miller sought the transcript
at state expense. Because he received legal representation from an
attorney working on a pro bono publico basis instead of a Maryland
public defender, however, a state judge denied the request.2 Acknowl-
edging Miller's right as an indigent to transcripts necessary for appeal
purposes, the court nevertheless ruled that Maryland Rules 1-325(b)
and 8-505 required an indigent to be represented by the state public
defender's office in order to receive those transcripts at state expense.3
_________________________________________________________________

1 Miller received a sentence of life in prison plus twenty years.

2 The state court both refused to order the public defender's office to
provide the transcript and declined to pay for a copy itself.

3 Maryland Rule 1-325(b) (1996) reads:

           The court shall order the State to pay the court costs related
          to an appeal or an application for leave to appeal and the costs
          of preparing any transcript of testimony, brief, appendices, and

                     2
The court then found that Miller failed to satisfy that criterion because
he refused to accept public defender representation and because his
attorney refused to seek designation as an assigned public defender so
that he could represent Miller under the supervision of the public
defender's office.

Miller appealed to the Maryland Court of Special Appeals, arguing
that the transcript denial violated the Fourteenth Amendment's equal
protection and due process guarantees, as well as his Sixth Amend-
ment right to counsel. The appellate court reversed the trial court, but
on purely statutory grounds. See Miller v. Maryland, 635 A.2d 1, 6
(Md. Ct. Spec. App. 1993). The court interpreted Maryland Rule 1-
325(b) to permit an indigent defendant represented by pro bono coun-
sel to receive at state expense the transcripts necessary for appeal and
ordered the state public defender's office to accommodate Miller.

The Maryland Court of Appeals granted certiorari and reversed,
holding that the Maryland Rules neither required the provision of a
free transcript to Miller nor violated his constitutional rights. See
Maryland v. Miller, 651 A.2d 845, 846, 851-52 (Md. 1994). The court
read Rule 1-325(b) as requiring an indigent to "apply to the Public
Defender and be represented by, or refused representation by, that
office before he can receive a free transcript." Id. at 849. The court
explained that the rule uses the public defender as a "gatekeeper" to
protect against the waste or abuse of state resources set aside for indi-
gent defendants.
_________________________________________________________________

          record extract necessary in connection with the appeal, in any
          case in which (1) the Public Defender's Office is authorized by
          these rules or other law to represent a party, (2) the Public
          Defender has declined representation of the party, and (3) the
          party is unable by reason of poverty to pay those costs.

Rule 8-505 states:

           When the lower court has ordered that costs be paid by the
          State of Maryland pursuant to Rule 1-325(b) or in any case in
          which a party to the appeal is represented by the Public
          Defender, that party's brief, reply brief, and other documents
          required to be filed by that party in the appellate court shall be
          reproduced under the supervision of the Public Defender.

                     3
Acknowledging that the rule treats indigents and non-indigents dif-
ferently, the court of appeals determined that Miller's federal consti-
tutional rights had not been violated because he had not been
"completely denied the appellate process." Id. at 851. The court found
that the requirement of application to the public defender's office is
a "reasonable restriction" on an indigent appellant's constitutional
right to a free transcript. Id. at 852. Furthermore, the court concluded
that the procedure does not discriminate on the basis of wealth:

          [T]he kind of appeal Miller will get does not depend on the
          amount of money he has; it depends on his willingness to
          cooperate and follow the reasonable procedures set forth in
          [Md. Ann. Code] Art. 27A and the Maryland Rules. But for
          his intransigence, this system would work, and Miller would
          receive a free transcript.

Id.

Finally, the state court of appeals rejected Miller's Sixth Amend-
ment challenge. The court reasoned that a criminal appellant has no
absolute or automatic right to choice of counsel, so requiring Miller
to "avail himself of the [public defender's services] in order to obtain
a free transcript" is permissible. Id. at 853.

Miller sought reconsideration of the ruling, arguing that a conflict
of interest on the part of the public defender's office prevented him
from accepting its services on appeal. He maintained that in the
course of representing his co-defendant in the underlying murder
case, the office had accused Miller of being the driver of the car and
thus, the murderer. Forcing him to accept public defender services on
appeal, Miller argued, would therefore violate his constitutional pro-
tection against conflict-free legal representation. The court of appeals
denied the motion.

Miller next filed his federal habeas corpus petition. Following the
recommendation of a federal magistrate who had adopted the findings
and conclusions of the Maryland Court of Appeals, the district court
denied the petition. Meanwhile, the Maryland Court of Special
Appeals dismissed Miller's direct appeal because he failed to provide

                     4
the relevant trial transcript. Miller asked the district court to stay or
enjoin the state court's dismissal of his appeal, but the court refused.

II

Miller presents three claims on appeal: (1) that the district court
should have held an evidentiary hearing and rendered its own findings
of fact and conclusions of law; (2) that the State's denial of a free
transcript violated his constitutional rights; and (3) that the district
court should have stayed the state court order dismissing his appeal.
After careful consideration, we find that the first and third challenges
are without merit. See Townsend v. Sain, 372 U.S. 293, 313, 318
(1963) (district court does not abuse its discretion by refusing to hold
an evidentiary hearing where there are no relevant facts in dispute);
Pruett v. Thompson, 996 F.2d 1560, 1577 (4th Cir.), cert. denied, 510
U.S. 984 (1993); see also Levine v. Torvik, 986 F.2d 1506, 1518-19
(6th Cir.) (in considering a habeas petitioner's request for a stay, the
court generally looks at the substantiality of the claims, the likelihood
of success and the existence of extraordinary circumstances), cert.
denied, 509 U.S. 907 (1993). We do, however, agree that the denial
of a free transcript to Miller is unconstitutional as impermissibly
infringing upon his rights under the Sixth and Fourteenth Amend-
ments, and turn now to that claim.

III

A

The U.S. Constitution does not obligate states to provide an oppor-
tunity to appeal in criminal cases. McKane v. Durston, 153 U.S. 684,
687 (1894). If a state chooses to create such a right to review, how-
ever, it must employ procedures that satisfy due process and equal
protection. Evitts v. Lucey, 469 U.S. 387, 393 (1985); Nelson v.
Peyton, 415 F.2d 1154, 1157 (4th Cir. 1969), cert. denied, 397 U.S.
1007 (1970). In the criminal context, due process is violated by state
procedures that "offend[ ] some principle so rooted in the traditions
and conscience of our people as to be ranked as fundamental." Billotti
v. Legursky, 975 F.2d 113, 115 (4th Cir. 1992) (quoting Medina v.
California, 505 U.S. 437, 445 (1992)), cert. denied, 507 U.S. 984
(1993). Equal protection requires that, once created, a state's appellate

                     5
procedures "must be kept free of unreasoned distinctions." Rinaldi v.
Yeager, 384 U.S. 305, 310 (1966). "[I]n defining a class subject to
legislation, the distinctions that are drawn [must] have some relation
to the purpose for which the classification is made." Id. at 309.

"The Assistance of Counsel for his [the defendant's] defense" guar-
anteed by the Sixth Amendment to the Constitution may be provided
insofar as selection of a public defender to represent an indigent is
concerned. It does not, however, force such representation by a defen-
dant who prefers to decline public defender representation and to
select a qualified attorney who agrees to represent him pro bono
publico. Where that occurs, as it has here, for the State of Maryland
to refuse a transcript (which would be supplied to a public defender)
amounts clearly and simply to partial yet substantial denial of the
assistance which is guaranteed by the Sixth Amendment. It signifies
a denial of fairness and equality.

Drawing on these notions of fairness and equality, the Supreme
Court has held that the Fourteenth Amendment guarantees "meaning-
ful access to justice" in criminal cases.4 Ake v. Oklahoma, 470 U.S.
68, 77 (1985). All criminal defendants are entitled to "an adequate
opportunity to present their claims fairly within the adversary sys-
tem." Ross v. Moffitt, 417 U.S. 600, 612 (1974). "[J]ustice," the Court
has explained, "cannot be equal where, simply as a result of his pov-
erty, a defendant is denied the opportunity to participate meaningfully
_________________________________________________________________

4 The Court's reasoning rests on both the Due Process Clause and
Equal Protection Clause of the Fourteenth Amendment. See Evitts, 469
U.S. at 403-05 (discussing converging principles of equal protection and
due process in meaningful access cases); Bearden v. Georgia, 461 U.S.
660, 665 (1983) (same). Sometimes the Court has leaned more heavily
on one clause or the other, while at other times it has blurred the distinc-
tion between the two.

As the Court has explained, each clause embodies "a different inquiry
which emphasizes different factors." Ross v. Moffitt, 417 U.S. 600, 609
(1974). Due process "emphasizes fairness between the State and the indi-
vidual dealing with the State, regardless of how other individuals in the
same situation may be treated[,]" while equal protection "emphasizes dis-
parity in treatment by a State between classes of individuals whose situa-
tions are arguably indistinguishable." Id.

                     6
in a judicial proceeding in which his liberty is at stake." Ake, 470 U.S.
at 76.

No one disputes the applicability of these long-standing principles
to Miller's case, as Maryland has created a statutory right of direct
appeal for convicted criminals. See Md. Code Ann. [Cts. & Jud.
Proc.] § 12-301 (1995). The disagreement here concerns Maryland's
method for providing transcripts to indigent appellants and the impact
of that method on Miller. The State contends that its procedures
ensure meaningful access consistent with the requirements of the
Fourteenth Amendment. Miller, of course, insists that they fall short.

B

Miller asserts that two constitutional rights are implicated in the
case at bar: his entitlement to a free transcript for appeal and his right
to counsel of choice.

1

Meaningful access entitles a criminal appellant pursuing a first
appeal as of right to "certain minimum safeguards necessary to make
that appeal `adequate and effective.'" Evitts, 469 U.S. at 392 (citation
omitted). Thus, the Court has "focused on identifying the `basic tools
of an adequate defense or appeal,' . . . and . . . required that such tools
be provided to those defendants who cannot afford to pay for them."
Ake, 470 U.S. at 77 (internal citation omitted). While a state has no
obligation to "purchase for the indigent defendant all the assistance
that his wealthier counterpart might buy," it must provide substan-
tially the same access to both. Id.

Among those tools generally considered essential to ensure ade-
quate and effective appellate review is a transcript of prior proceed-
ings. An indigent is entitled, therefore, to a free transcript when
necessary to a decision on the merits of his criminal appeal. Griffin
v. Illinois, 351 U.S. 12, 19-20 (1956) (plurality). In Maryland, appel-
late courts require the relevant trial records to accompany an appeal
and have the discretion to dismiss an appeal lacking the necessary
documents. See Md. Rules 8-411, 8-413(a), 8-602(a). Consequently,

                     7
because a trial transcript is a necessary tool available to other appel-
lants for a price, the State must provide a free copy to an indigent
appellant unable to buy one.5 Britt v. North Carolina, 404 U.S. 226,
227 (1971); Griffin, 351 U.S. at 19-20; accord United States v.
Talbert, 706 F.2d 464, 469-70 (4th Cir. 1983); United States v.
Gaither, 527 F.2d 456, 458 (4th Cir. 1975), cert. denied, 425 U.S. 952
(1976).

2

A criminal defendant also has a constitutional right to counsel of
choice.6 Wheat v. United States, 486 U.S. 153, 159 (1988); United
States v. Corporan-Cuevas, 35 F.3d 953, 956 (4th Cir. 1994).
Grounded primarily in the Sixth Amendment right to effective assis-
tance of counsel, the right protects the general freedom "to select and
be represented by one's preferred attorney."7 Wheat, 486 U.S. at 159.
_________________________________________________________________

5 The government may refuse to provide a transcript to an indigent
appellant only when an adequate alternative is available, Britt v. North
Carolina, 404 U.S. 226, 227 (1971); Riggins v. Rees, 74 F.3d 732, 735
(6th Cir. 1996); United States v. Talbert, 706 F.2d 464, 469 (4th Cir.
1983), or if the defendant has waived a prior opportunity to obtain a tran-
script and makes a frivolous request, United States v. MacCollom, 426
U.S. 317, 326-27 (1976) (federal defendant seeking transcript to pursue
collateral relief). Neither situation is present in the case at bar.

6 The State advances the proposition that an indigent has no right to
counsel of his own choosing. In fact, every circuit court and the U.S.
Supreme Court has recognized that a criminal defendant has a qualified
right to counsel of choice. See, e.g., United States v. Inman, 483 F.2d
738, 739-40 (4th Cir. 1973) ("The Sixth Amendment right to counsel
includes . . . the right of any accused, if he can provide counsel for him-
self by his own resources or through the aid of his family or friends, to
be represented by an attorney of his own choosing."), cert. denied, 416
U.S. 988 (1974). The State further argues that there is no constitutional
right to self representation on appeal, and thus no right to counsel of
choice. We find that argument weak as well, for as the Third Circuit has
observed, the Supreme Court notes in Wheat that the right to counsel of
choice is not a species of the right to self representation. See Fuller v.
Diesslin, 868 F.2d 604, 608 (3rd Cir.) (citing Wheat, 486 U.S. at 159
n.3), cert. denied, 493 U.S. 873 (1989).

7 The Supreme Court has recognized that the right also has a basis in
the Fourteenth Amendment's promise of due process of law. See Powell

                     8
While that right is not absolute, the Supreme Court has explained that
there is always a "presumption in favor of [a defendant's] counsel of
choice." Id. at 164.

The State contends that the right to counsel of choice neither con-
tinues on appeal nor applies to indigents. We disagree. Because the
assistance of an attorney is one of the "raw materials integral to the
building of an effective defense," Ake, 470 U.S. at 77, the Supreme
Court has repeatedly affirmed that the Fourteenth Amendment's
promise of meaningful access entitles an indigent to the effective
assistance of counsel on appeal. McCoy v. Court of Appeals of
Wisconsin, 486 U.S. 429, 436 (1988); Evitts, 469 U.S. at 396-97;
accord Nelson, 415 F.2d at 1157. We have recognized that the right
to counsel of choice "is premised on respect for the individual," and
characterized it as "an essential element" of the right to counsel.
United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994) (citation
omitted); see also United States v. Gallop, 838 F.2d 105, 107 (4th
Cir.), cert. denied, 487 U.S. 1211 (1988). Because we discern no rea-
son for withholding that important component of the fundamental
right to counsel on appeal, we decline to do so here.8 See Nelson, 415
F.2d at 1157 (once the state creates an appellate system, it must pro-
vide an unqualified right to counsel).

In addition, we realize that "a defendant may not insist on represen-
tation by an attorney he cannot afford or who for other reasons
declines to represent the defendant." Wheat, 486 U.S. at 159. Thus,
the right to counsel of choice does not extend to an indigent receiving
public representation, see Caplin & Drysdale, Chartered v. United
States, 491 U.S. 617, 624 (1989); United States v. Childress, 58 F.3d
693, 736 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 825 (1996), but
does apply to an indigent able to secure pro bono counsel, see Caplin,
_________________________________________________________________

v. Alabama, 287 U.S. 45, 53 (1932). Circuit courts of appeal generally
treat the right as derived from the Sixth Amendment. See, e.g.,
Corporan-Cuevas, 35 F.3d at 956; United States v. Friedman, 849 F.2d
1488, 1490 (D.C. Cir. 1988), cert. denied, 498 U.S. 1110 (1991).

8 Neither the Supreme Court nor any of our sister circuits appear to
have held otherwise. See, e.g., Friedman, 849 F.2d at 1490 n.5 (assum-
ing, without deciding, that the right to counsel of choice applies to the
first appeal as of right).

                    9
491 U.S. at 624-25 ("Nor does the Government deny that the Sixth
Amendment guarantees a defendant the right to be represented by an
otherwise qualified attorney whom that defendant can afford to hire,
or who is willing to represent the defendant even though he is without
funds.").

C

The State has conceded that Miller needed a transcript in order to
receive adequate appellate review and that, as an indigent, he quali-
fied for state-funded services. The State has further acknowledged
that Miller was denied a free transcript solely because he received
legal representation outside the auspices of the public defender's
office. Miller argues, therefore, that by interpreting Rule 1-325(b) to
require that he apply for public defender services in order to receive
a free transcript, the State sought to deny him counsel of choice,
treated him differently solely because of his indigency, and ultimately
deprived him of "adequate and effective appellate review." He main-
tains that the State created a Hobson's choice whereby an indigent
criminal appellant who seeks to assert his constitutional right to a
state-provided transcript must forfeit his right to the attorney of his
choice for no compelling reason.

1

We agree with Miller's assessment. Although procedural as the
State maintains, the requirement of application for public representa-
tion did interfere with Miller's right to retain his counsel of choice
and his ability to receive the transcript he needed to appeal. Indeed,
the State's interpretation of Rule 1-325(b) as mandating application
to the public defender's office forced Miller to choose between his
secured counsel and the necessary trial record. Although he had an
attorney at no cost to the State, Miller was told he must give up that
attorney in order to receive a free transcript. When he insisted on
retaining his pro bono counsel, he was denied the transcript. The state
court then dismissed his appeal due to the missing transcript. It is thus
abundantly clear that, in Maryland, an indigent seeking a transcript
for appeal has only one route available, and that route -- seeking pub-
lic defender representation -- requires forfeiting another constitu-
tional right.

                     10
Forcing a criminal defendant to surrender one constitutional right
"in order to assert another" is "intolerable." Simmons v. United States,
390 U.S. 377, 394 (1968) (describing situation whereby defendant
was obliged either to forfeit what he believed to be a valid Fourth
Amendment claim or to waive his Fifth Amendment privilege against
self incrimination); see also Lefkowitz v. Cunningham, 431 U.S. 801,
807-08 (1977) (finding state statute impermissibly coercive, in part
because it forces forfeiture of one constitutional right as the price for
exercising another); United States v. Ryan, 810 F.2d 650, 656 (7th
Cir. 1987) (recognizing that government is precluded from "coercing
the waiver of a constitutional right either by conditioning the exercise
of one constitutional right on the waiver of another, . . . or by attack-
ing conditions that penalize the exercise of a constitutional right").9
_________________________________________________________________

9 Later cases have distinguished Simmons on factual or other grounds
without dispelling its notion that a criminal defendant must not be forced
to surrender one constitutional right in order to exercise another. See,
e.g., United States v. Kahan, 415 U.S. 239, 242-43 (1974) (distinguishing
Simmons because respondent did not have valid Sixth Amendment right
to appointment of counsel and "was not, therefore, faced with the type
of intolerable choice Simmons sought to relieve"). In addition, other cir-
cuit courts have noted Simmons in their acknowledgment of a "doctrine
of unconstitutional conditions" in the criminal context. Ryan, 810 F.2d
at 656; see also United States v. Dent, 984 F.2d 1453, 1460 (7th Cir.),
cert. denied, 510 U.S. 858 (1993).

The Supreme Court has noted that the Constitution does not forbid
"every government-imposed choice in the criminal process that has the
effect of discouraging the exercise of constitutional rights." Chaffin v.
Stynchcombe, 412 U.S. 17, 30 (1973) (discussing cases upholding plea
bargaining despite its encouragement of the waiver of some constitu-
tional rights). However, making the exercise of a constitutional right con-
tain some element of risk, such as a longer sentence, is quite different
from foreclosing the exercise of one right merely by the assertion of
another. See Bordenkircher v. Hayes, 434 U.S. 357, 363-64 (1978) (find-
ing no punishment or retaliation inherent in plea bargaining so long as
the defendant is free to accept or reject the prosecution's offer); see also
Tomai-Minogue v. State Farm Mut. Auto, Ins. Co., 770 F.2d 1228, 1232
n.6 (4th Cir. 1985) (explaining that forcing a choice between the exercise
of constitutional rights is different from a situation involving waiver
where "one voluntarily surrenders a constitutional right, not to assert
another constitutional right, but to secure an obvious collateral benefit").

                    11
We previously have found it impermissible to compel a civil litigant
to forego some constitutional rights in order to assert others. See
Tomai-Minogue v. State Farm Mut. Auto. Ins. Co., 770 F.2d 1228,
1232 (4th Cir. 1985). We believe it even more egregious to subject
a criminal defendant to such a choice.10 We agree with the Third Cir-
cuit that

          [a] defendant in a criminal proceeding is entitled to certain
          rights and protections which derive from a variety of
          sources. He is entitled to all of them; he cannot be forced to
          barter one for another. When the exercise of one right is
          made contingent upon the forbearance of another, both
          rights are corrupted.

United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3rd Cir.
1977) (finding that conditioning the exercise of the right to testify
upon waiver of the right to counsel is an impermissible infringement
upon both rights).

Forcing an indigent to choose between two rights guaranteed by the
Constitution results in the denial of one right or the other. Imposition
of that dilemma upon Miller thus affronts our notions of basic fair-
ness. But even if it did not, the State must provide a legitimate reason
for burdening Miller's ability to exercise his constitutional rights. See
generally Daniels v. Williams, 474 U.S. 327, 331 (1986) (due process
protects individuals from arbitrary state action); Nebbia v. New York,
291 U.S. 502, 536-37 (1934) (due process requires that state action
bear a reasonable relation to a proper legislative purpose and is not
arbitrary or impermissibly discriminatory). Conditions imposed on an
indigent's ability to obtain a free transcript cannot be arbitrary and
unreasonable, but must "comport with fair procedure." United States
v. MacCollom, 426 U.S. 317, 324 (1976) (quoting Douglas v.
California, 372 U.S. 353, 357, 365 (1963)); see also Lane v. Brown,
_________________________________________________________________

10 The circumstances here appear especially pernicious because Miller
has offered a particularly compelling reason for refusing public defender
representation. The fact that the State has procedures in place for assign-
ing to panel attorneys cases in which the public defender's office has a
conflict of interest does not justify forcing that option upon an indigent
who has available the free services of another attorney.

                    12
372 U.S. 477, 485 (1963) (voiding state law that arbitrarily granted
transcripts to indigents only at the public defender's request). Simi-
larly, the right to counsel of choice "must be protected if possible."
United States v. Agosto, 675 F.2d 965, 970 n.4 (8th Cir.), cert. denied,
459 U.S. 834 (1982); see also Wheat, 586 U.S. at 164. The State may
deny the right only "to serve some compelling purpose," United
States v. D'Amore, 56 F.3d 1202, 1204 (9th Cir. 1995) (internal quo-
tation marks omitted), and at the very least, must provide a "strong
governmental reason" for burdening an individual's ability to exercise
the right,11 Caplin, 491 U.S. at 631; see also United States v.
Monsanto, 491 U.S. 600, 616 (1989) (testing pretrial restraining order
for arbitrary interference with defendant's opportunity to retain coun-
sel).

Moreover, equal protection principles require the State to assert a
compelling reason to justify disparate treatment of indigents and non-
indigents when, as here, that difference interferes only with the con-
stitutional rights of indigents. See San Antonio Indep. Sch. Dist. v.
Rodriguez, 411 U.S. 1, 29 (1973) (when a statute differentiating on
the basis of wealth interferes in the exercise of a fundamental right,
strict scrutiny applies); Rinaldi, 384 U.S. at 309; see generally
Cleburne v. Cleburne Living Center Inc., 473 U.S. 432, 440 (1985)
(strict scrutiny requires that a law be "suitably tailored to serve a com-
pelling state interest" in order to survive)."Unfairness results only if
_________________________________________________________________

11 For the most part, counsel-of-choice issues have arisen at the trial
level and involved motions for continuance to accommodate counsel or
disqualification of counsel. See United States v. Voigt, 89 F.3d 1050,
1074 (3rd Cir. 1996) (discussing and categorizing counsel-of-choice
cases). Accepted practice calls for judicial balancing of the asserted gov-
ernmental interests against the defendant's right to proceed with his cho-
sen counsel. See Corporan-Cuevas, 35 F.3d at 956. Valid justifications
for trumping the right have focused on the integrity of the judicial pro-
cess and concerned such matters as the orderly administration of justice,
see, e.g., Mullen, 32 F.3d at 895; potential attorney-client conflicts of
interest, see, e.g., Wheat, 486 U.S. at 164, and attorneys' ethical prob-
lems, see, e.g., D'Amore, 56 F.3d at 1204. Defendants have also chal-
lenged the impact of court rules or statutes on their right to counsel of
choice. See, e.g., Caplin, 491 U.S. at 624 (claim that forfeiture laws
infringed upon right); United States v. Weisman, 858 F.2d 389, 390 (8th
Cir. 1988) (same), cert. denied, 489 U.S. 1071 (1989).

                    13
indigents are singled out by the State and denied meaningful access
to the appellate system because of their poverty." Ross, 471 U.S. at
611.

2

We conclude that the State's reasons do not provide sufficient justi-
fication for violating Miller's constitutional rights. On the whole, we
find the State's logic less than compelling and somewhat arbitrary.
The Maryland Court of Appeals found the requirement that all indi-
gent appellants must seek services through the public defender's
office justified by the State's objective of protecting the resources that
it has set aside for indigent defendants. To that end, the State has also
asserted a desire to encourage competent legal representation for poor
defendants and an administrative goal of easing recovery of costs
from those indigent defendants who later acquire funds. While all of
these reasons are certainly admirable, they simply do not warrant
unnecessary infringement upon an indigent's ability to exercise his
constitutional rights.

In circumstances such as those at bar, where an indigent appellant
has successfully retained counsel at no cost to himself or the State, the
conservation rationale disappears. When there is no need for
appointed counsel, the explanation that forcing all indigents to seek
public representation will protect state resources is nonsensical. If
properly applied, the rule will force all indigents seeking to pursue a
direct appeal to become clients of the state public defender's office
-- even those capable of securing pro bono legal representation and
imposing no financial burden on the State. Due simply to the increase
in clients to be served, the State will end up needing more resources
to carry out its duties. Casting a wider net by insisting that all indigent
appellants proceed through the public defender system can therefore
only cost -- not save -- state resources.

To require further, as the State does, that an indigent must accept
all aspects of the government-funded legal assistance that relate to his
appeal -- even when he only needs or wants one particular service
-- is absurd. Instead of encouraging outside legal representation with
the potential to conserve state assets, the rule only guarantees the
expenditure of more government resources. Instead of creating a sys-

                     14
tem whereby the State may only have to pay for production of a tran-
script or waive a filing fee, but will not bear the far greater cost of
accompanying legal services, Maryland's rule ensures that the State
will foot the entire bill. See Fullan v. Commissioner of Corr. of N.Y.,
891 F.2d 1007, 1011 (2d Cir. 1989) ("[T]he expense here would be
greater if the State were required to pay the attorney's fee as well as
the cost of the transcript."), cert. denied, 496 U.S. 942 (1990).

The State's related argument that it seeks to ensure reimbursement
of its expenditures is weak. It is illogical to assume that any additional
funds that the State might recover by forcing all indigents seeking to
appeal under the auspices of the public defender would outweigh or
even equal the increased amount it will end up spending in order to
provide full legal representation for its extra clients. Again, with such
an all-or-nothing rule, the State can only lose money.

Again, the State's motivation of providing competent legal repre-
sentation for indigents is worthy, but its related actions here rest on
an unproven, if not faulty, supposition which renders them arbitrary.
The State presumes that an appeal handled outside the public defend-
er's supervision is more likely to be frivolous or mishandled. That
assertion is unsubstantiated by the record.12 Therefore, it cannot serve
as a valid reason for interfering with the constitutional rights of Miller
or any other indigent not receiving public defender representation.
Moreover, the desire to curb frivolous appeals cannot justify any pre-
requisite to a direct appeal unless it is uniformly applied to indigents
and non-indigents alike. See Rinaldi, 384 U.S. at 310-11; Draper v.
Washington, 372 U.S. 487, 499 (1963); Douglas v. California, 372
U.S. 353, 357-58 (1963). "When an indigent is forced to run [the]
gantlet of a preliminary showing or merit, the right to appeal does not
comport with fair procedure." Douglas, 372 U.S. at 357.

Finally, we note that there are many valid reasons for permitting,
not punishing, pro bono representation on appeal. Recognizing and
_________________________________________________________________

12 The state court of appeals noted that the rule ensures that control over
expenditures for transcripts is vested in the public defender's office.
There is no evidence, however, that appellants with pro bono counsel
seek unnecessary transcripts. In fact, Miller sought only those portions
of his trial transcript relevant to his direct appeal.

                     15
protecting an appellant's right to counsel of choice are activities much
more likely to boost the public's perception of the justice system than
to undermine it. See United States v. Washington, 797 F.2d 1461,
1466 (9th Cir. 1986) (explaining that "the public very well may have
greater confidence in the integrity of the judicial process assured that
a criminal defendant's right to counsel of his choice will not be lightly
denied."). One would expect all states to encourage poor defendants
to accept offers of free legal representation from competent attorneys
outside the public defender's office. Clearly, allowing pro bono repre-
sentation can only benefit Maryland's overburdened and underfunded
legal services system by supplementing its resources at no extra cost.
In addition, it would emphasize the State's need and desire for volun-
teer legal representation. See Mallard v. United States Dist. Court for
Southern Dist. of Iowa, 490 U.S. 296, 310 (1989) ("[I]n a time when
the need for legal services among the poor is growing and public
funding for such services has not kept pace, lawyers' ethical obliga-
tion to volunteer their time and skills pro bono publico is manifest.").
The way to accomplish these goals is to accommodate, not penalize,
pro bono legal representation.

IV

In conclusion, we find that the interpretation and application of
Maryland Rule 1-325(b) violated Miller's constitutional rights. The
rule requires an indigent criminal defendant with pro bono legal rep-
resentation to forfeit his counsel of choice in order to obtain a tran-
script needed for appeal. Thus, for no compelling reason, an indigent
seeking to appeal his conviction is forced to choose between his con-
stitutional rights in a way that a wealthier defendant is not. That out-
come cannot be judged consistent with the guarantee of meaningful
access to justice. It "violates equal protection principles because it
distinguishe[s] between poor and rich with respect to such a vital
right. But it also violate[s] due process principles because it decide[s]
the appeal in a way that [is] arbitrary to the issues involved." Evitts,
469 U.S. at 404.

Because we cannot allow administrative rules so easily to defeat
constitutional guarantees, we reverse the district court with instruc-
tions to issue the writ directing the State of Maryland to provide Mil-

                     16
ler with a trial transcript and an opportunity to appeal his conviction
and sentence.

REVERSED AND REMANDED WITH INSTRUCTIONS

HAMILTON, Circuit Judge, dissenting:

I cannot agree with the majority's conclusion that Miller's constitu-
tional rights were violated in this case. Therefore, I respectfully dis-
sent.

The premise of the majority's conclusion is that the State of Mary-
land forced Miller to forfeit his constitutional right to an attorney of
his choice when he sought to assert his constitutional right to a trial
transcript at state expense. This premise is flawed, however, because
the State of Maryland never deprived Miller of his constitutional right
to counsel of his choice.

The Sixth Amendment to the Constitution guarantees that "[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence." U.S. CONST. amend. VI.
The right to counsel confers on a state criminal defendant the absolute
right to be represented by counsel at trial, see Gideon v. Wainwright,
372 U.S. 335 (1963), and, provided the state has appellate review, on
a first direct appeal, see Douglas v. California , 372 U.S. 353 (1963).*

The Sixth Amendment also protects a criminal defendant's right to
counsel of his or her choice. See Wheat v. United States, 486 U.S.
153, 159 (1988). However, unlike the right to counsel, the right to
counsel of choice is not absolute. See United States v. Gallop, 838
F.2d 105, 107 (4th Cir.), cert. denied, 487 U.S. 1211 (1988). The right
to counsel of choice enables a criminal defendant"to select and be
represented by [his or her] preferred attorney." Wheat, 486 U.S. at
159. However, a criminal defendant cannot "insist on representation
by an attorney he [or she] cannot afford." Id. This is so because the
protections of the Sixth Amendment right to counsel of choice do not
_________________________________________________________________

* A state is not required to provide appellate courts or appellate review.
McKane v. Durston, 153 U.S. 684, 687-88 (1944).

                     17
extend "beyond `the individual's right to spend his [or her] own
money to obtain the advice and assistance of . . . counsel.'" Caplin
& Drysdale Chartered v. United States, 491 U.S. 617, 626 (1989)
(quoting Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305,
370 (1985) (Stevens, J., dissenting)); see also Wheat, 486 U.S. at 159
(noting that "the essential aim of the [Sixth] Amendment is to guaran-
tee an effective advocate for each criminal defendant rather than to
ensure that a defendant will inexorably be represented by the lawyer
whom he prefers"). Consequently, an indigent criminal defendant has
no constitutional right to have a particular lawyer represent him or
her. Gallop, 838 F.2d at 108; see also Green v. Abrams, 984 F.2d 41,
47 (2d Cir. 1993) ("indigent defendant has no right to choose the par-
ticular counsel appointed"); United States v. Bradley, 892 F.2d 634,
635 (7th Cir.) (indigent criminal defendants "cannot pick and choose
among members of the district court's bar"), cert. denied, 495 U.S.
909 (1990); Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir.
1985) ("indigent criminal defendant has an absolute right to be repre-
sented by counsel, but he does not have a right to have a particular
lawyer represent him"), cert. denied, 475 U.S. 1031 (1986).

In this case, it cannot be gainsaid that Miller is indigent. Accord-
ingly, Miller does not have a constitutional right to demand that a par-
ticular attorney represent him on his direct appeal. The Constitution
requires that the State of Maryland provide Miller counsel on direct
appeal, and the State of Maryland has fulfilled this obligation by pro-
viding that service through its public defender's office. The State of
Maryland's decision to fulfill its obligation to indigent criminal
defendants by requiring that they obtain counsel through the public
defender's office is eminently reasonable and constitutionally proper.
Thus, the State of Maryland's decision cannot, and should not, be
questioned by this court. In short, as an indigent, Miller has no right
to demand counsel on his own terms and the State of Maryland has
fulfilled its obligation to provide him counsel.

Nor were Miller's rights under the Equal Protection Clause of the
Fourteenth Amendment violated in this case. In the context of indi-
gent criminal defendants exercising rights of appeal, the Fourteenth
Amendment prevents states from "arbitrarily cut[ting] off the appeal
rights for indigents while leaving open avenues of appeal for more
affluent persons." Ross v. Moffitt, 417 U.S. 600, 607 (1974). While

                    18
the Equal Protection Clause of the Fourteenth Amendment "does not
require absolute equality or precisely equal advantages . . . [or] . . .
require the State to equalize conditions," id. at 612 (citation and inter-
nal quotes omitted), it "does require that . . . indigents have an ade-
quate opportunity to present their claims fairly within the adversary
system," id. (citation and internal quotes omitted). Thus, a state can-
not adopt procedures which leave an indigent criminal defendant "en-
tirely cut off from any appeal at all," by virtue of his or her indigency,
Lane v. Brown, 372 U.S. 477, 481 (1963) (striking down Indiana law
that only public defender could obtain free transcript of hearing on
coram nobis application; thus, if public defender declined to request
one, indigent could not obtain a transcript), or extend to such indigent
criminal defendants merely a "meaningless ritual" while the more
affluent have a "meaningful appeal," Douglas, 372 U.S. at 358 (hold-
ing unconstitutional California's requirement that counsel on appeal
would be appointed only if appellate court determined that such
appointment would be helpful to the indigent or the court). In short,
the duty of the states is to ensure that indigent criminal defendants
have "an adequate opportunity to present [their] claims fairly in the
context of the State's appellate process." Ross, 417 U.S. at 616.

The State of Maryland's procedure assures indigent criminal defen-
dants of an "adequate opportunity" to present their cases on appeal.
Under the State of Maryland's system, all indigent criminal defen-
dants are provided effective assistance of counsel, whether repre-
sented by the public defender's office, by a private attorney appointed
by the public defender's office, or by an attorney appointed by the
court. All the State of Maryland asks is that the indigent criminal
defendant first apply for representation with the public defender's
office. In addition, under the State of Maryland's system, all indigent
criminal defendants receive transcripts at state expense, provided they
likewise comply with the simple procedure of applying for represen-
tation with the public defender's office. The type of appeal an indi-
gent criminal defendant receives in the State of Maryland does not
turn on the amount of money he has, but rather on his or her willing-
ness to accept counsel as provided by the laws of the State of Mary-
land. Because the laws of the State of Maryland provide Miller with
an "adequate opportunity" to present his claims on direct appeal, his
rights under the Equal Protection Clause of the Fourteenth Amend-
ment were not violated.

                     19
In summary, Miller was not forced to forfeit his right to counsel of
his choice because, as an indigent, he had no right to counsel of his
choice. The State of Maryland's procedure for providing counsel and
transcripts for the purpose of enabling indigent criminal defendants to
pursue direct appeals complies with the mandates of the Constitution.
Because I would affirm the judgment of the district court, I respect-
fully dissent.

                    20
