317 Opinion of REHNQUIST, J. 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. III 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." 3 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. 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 3 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. Opinion of REHNQUIST, J. 426 U.S. 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 movants 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 317 Opinion of REHNQUIST, J. 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 Opinion of REHNQUIST, J. 426 U.S. 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).* Since a § 2255 claim is usually presented to the trial judge he will likely have an independent recollection of counsel's performance 317 Opinion of REHNQUIST, J. 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 established by § 753 (f) for the furnishing of a free transcript do not violate the Fifth Amendment is significant. 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 which may well lead him to conclude that a movant's claim is nonfrivolous. 5 E. g., Ellis v. Maine, 448 F. 2d 1325 (CA1 1971); United 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). |