HALBERT v. MICHIGAN
No. 03-10198
Supreme Court of the United States
June 23, 2005
545 U.S. 605
No. 03-10198. Argued April 25, 2005—Decided June 23, 2005
Bernard Eric Restuccia, Assistant Attorney General of Michigan, argued the cause for respondent. With him on the brief were Michael A. Cox, Attorney General, and Thomas L. Casey, Solicitor General.
Gene C. Schaerr argued the cause for the State of Louisiana et al. as amici curiae urging affirmance. With him on the brief were Charles C. Foti, Attorney General of Louisiana, Mimi Hunley, Assistant Attorney General, Julie E. Cullen, Linda T. Coberly, and Charles B. Klein, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, Mark J. Bennett of Hawaii, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Jim Hood of Mississippi, Mike McGrath of Montana, Brian Sandoval of Nevada, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Henry D. McMaster of South Carolina, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, and Rob McKenna of Washington.*
*Briefs of amici curiae urging reversal were filed for the American Bar Association by Robert J. Grey, Jr., Seth P. Waxman, Paul R. Q. Wolfson, and Noah A. Levine; and for the National Association of Criminal Defense
Timothy A. Baughman filed a brief of amicus curiae for Wayne County, Michigan, urging affirmance.
Elliot H. Scherker and Karen M. Gottlieb filed a brief for the National Legal Aid & Defender Association as amicus curiae.
JUSTICE GINSBURG delivered the opinion of the Court.
In 1994, Michigan voters approved a proposal amending the State Constitution to provide that “an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court.”
Petitioner Antonio Dwayne Halbert, convicted on his plea of nolo contendere, sought the appointment of counsel to assist him in applying for leave to appeal to the Michigan Court of Appeals. The state trial court and the Court of Appeals denied Halbert‘s requests for appointed counsel, and the Michigan Supreme Court declined review.
Michigan Court of Appeals review of an application for leave to appeal, Halbert contends, ranks as a first-tier appellate proceeding requiring appointment of counsel under Douglas v. California, 372 U. S. 353 (1963). Michigan urges that appeal to the State Court of Appeals is discretionary and, for an appeal of that order, Ross v. Moffitt, 417 U. S. 600 (1974), holds counsel need not be appointed. Earlier this Term, in Kowalski v. Tesmer, this Court, for prudential reasons, declined to reach the classification question posed by Michigan‘s system for appellate review following a plea of guilty, guilty but mentally ill, or nolo contendere. Today,
I
The Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U. S. 684, 687 (1894). Having provided such an avenue, however, a State may not “bolt the door to equal justice” to indigent defendants. Griffin v. Illinois, 351 U. S. 12, 24 (1956) (Frankfurter, J., concurring in judgment); see id., at 23 (same) (“[W]hen a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons . . . from securing such . . . review.“). Griffin held that, when a State conditions an appeal from a conviction on the provision of a trial transcript, the State must furnish free transcripts to indigent defendants who seek to appeal. Id., at 16-20 (plurality opinion). Douglas relied on Griffin‘s reasoning to hold that, in first appeals as of right, States must appoint counsel to represent indigent defendants. 372 U. S., at 357. Ross held, however, that a State need not appoint counsel to aid a poor person in discretionary appeals to the State‘s highest court, or in petitioning for review in this Court. 417 U. S., at 610-612, 615-618.
Cases on appeal barriers encountered by persons unable to pay their own way, we have observed, “cannot be resolved by resort to easy slogans or pigeonhole analysis.” M. L. B. v. S. L. J., 519 U. S. 102, 120 (1996) (internal quotation marks omitted). Our decisions in point reflect “both equal protection and due process concerns.” Ibid. “The equal protection concern relates to the legitimacy of fencing out would-be
Two considerations were key to our decision in Douglas that a State is required to appoint counsel for an indigent defendant‘s first-tier appeal as of right. First, such an appeal entails an adjudication on the “merits.” 372 U. S., at 357. Second, first-tier review differs from subsequent appellate stages “at which the claims have once been presented by [appellate counsel] and passed upon by an appellate court.” Id., at 356. Under the California system at issue in Douglas, the first-tier appellate court independently examined the record to determine whether to appoint counsel. Id., at 355. When a defendant able to retain counsel pursued an appeal, the Douglas Court observed, “the appellate court passe[d] on the merits of [the] case only after having the full benefit of written briefs and oral argument by counsel.” Id., at 356. In contrast, when a poor person appealed, “the appellate court [wa]s forced to prejudge the merits [of the case] before it c[ould] even determine whether counsel should be provided.” Ibid.
In Ross, we explained why the rationale of Douglas did not extend to the appointment of counsel for an indigent seeking to pursue a second-tier discretionary appeal to the North Carolina Supreme Court or, thereafter, certiorari review in this Court. The North Carolina Supreme Court, in common with this Court we perceived, does not sit as an error-correction instance. 417 U. S., at 615. Principal criteria for state high court review, we noted, included “whether the subject matter of the appeal has significant public interest, whether the cause involves legal principles of major significance to the jurisprudence of the State, [and] whether the decision below is in probable conflict” with the court‘s precedent. Ibid. (internal quotation marks omitted). Further, we pointed out, a defendant who had already bene-
II
A
Michigan has a two-tier appellate system comprising the State Supreme Court and the intermediate Court of Appeals. The Michigan Supreme Court hears appeals by leave only.
A defendant convicted by plea who seeks review in the Michigan Court of Appeals must now file an application for leave to appeal pursuant to
“(2) The trial court shall appoint appellate counsel for an indigent defendant [if the] prosecuting attorney seeks leave to appeal[, the] defendant‘s sentence exceeds the upper limit of the minimum sentence range of the applicable sentencing guidelines[, the] court of appeals or the supreme court grants the defendant‘s application for leave to appeal[, or the] defendant seeks leave to appeal a conditional plea . . . .
“(3) The trial court may appoint appellate counsel [if the] defendant seeks leave to appeal a sentence based upon an alleged improper scoring of an offense variable or a prior record variable[, the] defendant objected to the scoring or otherwise preserved the matter for appeal[, and the] sentence imposed by the court constitutes an upward departure from the upper limit of the minimum sentence range that the defendant alleges should have been scored.” § 770.3a(1)-(3).
In People v. Bulger, the Michigan Supreme Court considered whether the Federal Constitution secures a right to appointed counsel for plea-convicted defendants seeking review in the Court of Appeals. 462 Mich., at 511, 614 N. W. 2d, at 110. Recognizing Douglas and Ross as the guiding decisions, 462 Mich., at 511-516, 614 N. W. 2d, at 110-112, the State Supreme Court concluded that appointment of counsel is not required for several reasons: Court of Appeals review following plea-based convictions is by leave and is thus “discretionary,” id., at 506-508, 519, 614 N. W. 2d, at 108, 113; “[p]lea proceedings are . . . shorter, simpler, and more routine than trials,” id., at 517, 614 N. W. 2d, at 112; and by entering a plea, a defendant “accede[s] to the state‘s fundamental in-
B
Petitioner Halbert pleaded nolo contendere to two counts of second-degree criminal sexual conduct. App. 23. During Halbert‘s plea colloquy, the trial court asked Halbert, “You understand if I accept your plea you are giving up or waiving any claim of an appeal as of right,” and Halbert answered, “Yes, sir.” Id., at 22. The court then advised Halbert of certain instances in which, although the appeal would not be as of right, the court nevertheless “must” or “may” appoint appellate counsel. The court did not tell Halbert, however, that it could not appoint counsel in any other circumstances, including Halbert‘s own case:
“THE COURT: You understand if I accept your plea and you are financially unable to retain a lawyer to represent you on appeal, the Court must appoint an attorney for you if the sentence I impose exceeds the sentencing guidelines or you seek leave to appeal a conditional plea or the prosecutor seeks leave to appeal or the Court of Appeals or Supreme Court grants you leave to appeal. Under those conditions I must appoint an attorney, do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Further, if you are financially unable to retain a lawyer to represent you on appeal, the Court may appoint an attorney for you if you allege an improper scoring of the sentencing guidelines, you object to the scoring at the time of the sentencing and the sentence I impose exceeds the sentencing guidelines as you allege it should be scored. Under those conditions I may appoint an attorney for you, do you understand that?
“THE DEFENDANT: Yes, sir.” Id., at 22-23 (alteration omitted).1
At Halbert‘s sentencing hearing, defense counsel requested that the sentences for the two counts run concurrently, but urged no error in the determination of Halbert‘s exposure under the Michigan sentencing guidelines. Id., at 33. The trial court set Halbert‘s sentences to run consecutively. Id., at 35. Halbert submitted a handwritten motion to withdraw his plea the day after sentencing. Denying the motion, the trial court stated that Halbert‘s “proper remedy is to appeal to the Michigan Court of Appeals.” Id., at 43.
Twice thereafter and to no avail, Halbert asked the trial court to appoint counsel to help him prepare an application for leave to appeal to the intermediate appellate court. He submitted his initial request on a form provided by the State. Id., at 46-50, 53-57. The trial court denied the request. Id., at 44-45, 51-52. Halbert next sent the trial court a letter and accompanying motion, again seeking appointed counsel. Id., at 58. Halbert stated that his sentence had been misscored and that he needed the aid of counsel to preserve the issue before undertaking an appeal. Id., at 58, 61-62. Halbert also related that he had “required special education due to learning disabilities,” id., at 61, and was “mentally impaired,” id., at 62. To prepare his pro se filings, he noted,
Again using a form supplied by the State and acting pro se, Halbert filed an application for leave to appeal. Id., at 66-71. He asserted claims of sentencing error and ineffective assistance of counsel, id., at 68, and sought, inter alia, remand for appointment of appellate counsel and resentencing, id., at 71. In a standard form order, the Court of Appeals denied Halbert‘s application “for lack of merit in the grounds presented.” Id., at 72.
The State Supreme Court, dividing 5 to 2, denied Halbert‘s application for leave to appeal to that court. The dissenting justices would have provided for the appointment of counsel, and would have allowed counsel to file a supplemental leave application prior to the Court of Appeals’ reconsideration of Halbert‘s pleas. Id., at 84.
We granted certiorari, 543 U. S. 1042 (2005), to consider whether the denial of appointed counsel to Halbert violated the Fourteenth Amendment. We now vacate the judgment of the Michigan Court of Appeals.
III
Petitioner Halbert‘s case is framed by two prior decisions of this Court concerning state-funded appellate counsel, Douglas and Ross. The question before us is essentially one of classification: With which of those decisions should the instant case be aligned?2 We hold that Douglas provides the
A defendant who pleads guilty or nolo contendere in a Michigan court does not thereby forfeit all opportunity for appellate review. Although he relinquishes access to an appeal as of right, he is entitled to apply for leave to appeal, and that entitlement is officially conveyed to him. See supra, at 612;
The Court of Appeals may respond to a leave application in a number of ways. It “may grant or deny the application; enter a final decision; grant other relief; request additional material from the record; or require a certified concise statement of proceedings and facts from the court . . . whose order
Michigan urges that review in the Court of Appeals following a plea-based conviction is as “discretionary” as review in the Michigan Supreme Court because both require an application for leave to appeal. See Bulger, 462 Mich., at 506-508, 519, 614 N. W. 2d, at 108, 113; Brief for Respondent 31-34.4 Therefore, Michigan maintains, Ross is dispositive of this case. The Court in Ross, however, recognized that leave-granting determinations by North Carolina‘s Supreme Court turned on considerations other than the commission of error by a lower court, e. g., the involvement of a matter of “significant public interest.” See supra, at 611. Michigan‘s Supreme Court, too, sits not to correct errors in individual cases, but to decide matters of larger public import. See
Whether formally categorized as the decision of an appeal or the disposal of a leave application, the Court of Appeals’ ruling on a plea-convicted defendant‘s claims provides the first, and likely the only, direct review the defendant‘s conviction and sentence will receive. Parties like Halbert, however, are disarmed in their endeavor to gain first-tier review. As the Court in Ross emphasized, a defendant seeking State Supreme Court review following a first-tier appeal as of right earlier had the assistance of appellate counsel. The attorney appointed to serve at the intermediate appellate court level will have reviewed the trial court record, researched the legal issues, and prepared a brief reflecting that review and research. 417 U. S., at 615. The defendant seeking second-tier review may also be armed with an opinion of the intermediate appellate court addressing the issues counsel raised. A first-tier review applicant, forced to act pro se, will face a record unreviewed by appellate counsel, and will be equipped with no attorney‘s brief prepared for, or reasoned opinion by, a court of review.
The Bulger court concluded that “a pro se defendant seeking discretionary review” in the Court of Appeals is adequately armed because he “will have the benefit of a transcript, trial counsel‘s framing of the issues in [a] motion to withdraw, and the trial court‘s ruling on the motion.” 462 Mich., at 518, 614 N. W. 2d, at 113; see also
Persons in Halbert‘s situation are particularly handicapped as self-representatives. As recounted earlier this Term, “[a]pproximately 70% of indigent defendants represented by appointed counsel plead guilty, and 70% of those convicted
Navigating the appellate process without a lawyer‘s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert, who have little education, learning disabilities, and mental impairments. See Evitts, 469 U. S., at 393 (“[T]he services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits.“); Gideon v. Wainwright, 372 U. S. 335, 345 (1963) (“Even the intelligent and educated layman has small and sometimes no skill in the science of law.” (quoting Powell v. Alabama, 287 U. S. 45, 69 (1932))). Appeals by defendants convicted on their pleas may involve “myriad and often complicated” substantive issues, Kowalski, 543 U. S., at 145 (GINSBURG, J., dissenting), and may be “no less complex than other appeals,” id., at 141 (same). One who pleads guilty or nolo contendere may still raise on appeal
“constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary examination,
preserved entrapment claims, mental competency claims, factual basis claims, claims that the state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective assistance of counsel.” Ibid. (quoting Bulger, 462 Mich., at 561, 614 N. W. 2d, at 133-134 (Cavanagh, J., dissenting); citations omitted).
Michigan‘s very procedures for seeking leave to appeal after sentencing on a plea, moreover, may intimidate the uncounseled. See Kowalski, 543 U. S., at 141-142 (GINSBURG, J., dissenting).
Michigan contends that, even if Halbert had a constitutionally guaranteed right to appointed counsel for first-level appellate review, he waived that right by entering a plea of nolo contendere. We disagree. At the time he entered his plea, Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo.7 Moreover, as earlier ob-
*
For the reasons stated, we vacate the judgment of the Michigan Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE THOMAS, with whom JUSTICE SCALIA joins, and with whom THE CHIEF JUSTICE joins as to all but Part III-B-3, dissenting.
Petitioner Antonio Halbert pleaded no contest to charges that he sexually assaulted his stepdaughter and another
I
To understand why the Court‘s holding is an unwarranted extension of our precedents, it is necessary first to understand the limits that Michigan places on the provision of court-appointed counsel for defendants who plead guilty or no contest. Before 1994, Michigan afforded all criminal defendants the right to appeal their convictions to the Michigan Court of Appeals. By the early 1990‘s, however, the Michigan Court of Appeals had a backlog of thousands of cases awaiting decision, nearly a third of which were appeals by defendants who had pleaded guilty or no contest. People v. Bulger, 462 Mich. 495, 504, 614 N.W.2d 103, 107 (2000). To reduce this backlog, Michigan voters amended the Michigan Constitution in 1994 to provide that “[i]n every criminal prosecution, the accused shall . . . have an appeal as a matter of right, except [that] an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court.”
In 1999, the Michigan Legislature enacted the statute at issue here. It provides that, in general, a “defendant who
II
The majority nevertheless holds that Michigan‘s system is constitutionally inadequate. It finds that all plea-convicted indigent defendants have the right to appellate counsel when seeking leave to appeal. The majority does not say where in the Constitution that right is located—the
Instead, the majority pins its hopes on a single case: Douglas v. California, 372 U.S. 353 (1963). Douglas, however, does not support extending the right to counsel to any form of discretionary review, as Ross v. Moffitt, 417 U.S. 600 (1974), and later cases make clear. Moreover, Michigan has not engaged in the sort of invidious discrimination against indigent defendants that Douglas condemns. Michigan has done no more than recognize the undeniable difference between defendants who plead guilty and those who maintain their innocence, in an attempt to divert resources from largely frivolous appeals to more meritorious ones. The majority substitutes its own policy preference for that of Michigan voters, and it does so based on an untenable reading of Douglas.
A
In Douglas, California granted an initial appeal as of right to all convicted criminal defendants. 372 U.S., at 356. However, the California Court of Appeal appointed counsel for indigent defendants only after determining whether counsel would be useful to the defendant or the court. Ibid. Thus the California appellate court was “forced to prejudge the merits” of indigent defendants’ appeals, while it judged the merits of other defendants’ appeals only after briefing and oral argument. Ibid.
In previous cases, this Court had considered state-imposed conditions like transcript and filing fees that prevented indigent criminal defendants from obtaining any appellate review. Ross, supra, at 606–607 (discussing Griffin v. Illinois, 351 U.S. 12 (1956), and its progeny). By contrast, in Douglas, California provided appellate review to all criminal defendants, but it did not provide a state subsidy for indigent defendants whose claims appeared unlikely to benefit from counsel‘s assistance. This Court nevertheless held that when States provide a first appeal as of right, they must
Michigan‘s system bears some similarity to the state systems at issue in both Douglas and Ross. Like the defendant in Douglas, Halbert requests appointed counsel for an initial appeal before an intermediate appellate court. But like the defendant in Ross, Halbert requests appointed counsel for an appeal that is discretionary, not as of right. Crucially, however, Douglas noted that its decision extended only to initial appeals as of right—and later cases have repeatedly reaffirmed that understanding.1 This Court has never required States to appoint counsel for discretionary review. Ross, supra, at 610; Murray v. Giarratano, 492 U.S. 1, 10–11 (1989); see also Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). And an appeal permitted only “by leave of the court,”
Far from being an “arbitrary” or “unreasoned” distinction, Michigan‘s differentiation between defendants convicted at trial and defendants convicted by plea is sensible. First and perhaps foremost, the danger of wrongful convictions is less significant than in Douglas. In Douglas, California preliminarily denied counsel to all indigent defendants, regardless of whether they maintained their innocence at trial or conceded their guilt by plea. Here, Michigan preliminarily denies paid counsel only to indigent defendants who admit or do not contest their guilt. And because a defendant who pleads guilty “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea,” Tollett v. Henderson, 411 U.S. 258, 267 (1973), the potential issues that can be raised on appeal are more limited, Bulger, 462 Mich., at 517, and n. 7, 614 N.W.2d, at 112–113, and n. 7. Further, as the Michigan Supreme Court has explained:
“Plea proceedings are also shorter, simpler, and more routine than trials; the record most often consists of the
‘factual basis’ for the plea that is provided to the trial court. In contrast with trials, less danger exists in plea cases that the record will be so unclear, or the errors so hidden, that the defendant‘s appeal will be reduced to a meaningless ritual.” Id., at 517, 614 N.W.2d, at 112.
When a defendant pleads in open court, there is less need for counsel to develop the record and refine claims to present to an appellate court. These are all “[r]easoned distinctions” between defendants convicted by trial and those convicted by their own plea. M.L.B., supra, at 111 (quoting Rinaldi, supra, at 310).
The brief history of Michigan‘s system confirms this. When Michigan voters amended the State Constitution to establish the current system, roughly 13,000 civil and criminal appeals per year clogged the Michigan Court of Appeals’ docket. Of those, nearly a third were appeals by criminal defendants who had pleaded guilty or no contest. Even though at the time plea-convicted defendants were appointed paid appellate counsel, few of these defendants were granted relief on appeal. Simply put, Michigan‘s bar and bench were devoting a substantial portion of their scarce resources to thousands of cases with little practical effect. Reallocating resources was not “invidious discrimination” against criminal defendants, indigent or otherwise. Douglas, 372 U.S., at 356 (internal quotation marks omitted). It was an attempt to ensure “that frivolous appeals [were] not subsidized and public moneys not needlessly spent.” Griffin, supra, at 24 (Frankfurter, J., concurring in judgment).
Today‘s decision will therefore do no favors for indigent defendants in Michigan—at least, indigent defendants with nonfrivolous claims. While defendants who admit their guilt will receive more attention, defendants who maintain their innocence will receive less. Even some defendants who plead guilty will feel the pinch, because plea-convicted defendants are entitled to counsel in preparing their leave applications if, for example, they appeal from conditional
B
The majority does not attempt to demonstrate that Michigan‘s system is the sort of “unreasoned” discrimination against indigent defendants Douglas prohibits. Instead, the majority says that this case is earmarked by two considerations that were also key to this Court‘s decision in Douglas: First, when a plea-convicted defendant seeks leave to appeal, the Michigan Court of Appeals adjudicates the leave application with reference to the merits. Ante, at 617. Second, the plea-convicted defendant who seeks leave to appeal is “generally ill equipped to represent [himself].” Ibid. Neither of these arguments is correct.
1
The majority reasons that in adjudicating an application for leave to appeal, the Michigan Court of Appeals “is
The Michigan Court of Appeals probably does consider “the merits of the applicant‘s claims” in exercising its discretion; so do other courts of discretionary review, including this Court. For instance, this Court would be unlikely to grant certiorari in a case to announce a rule that could not alter the case‘s disposition, or to correct an error that had not affected the proceedings below. This Court often considers whether errors are worth correcting in both plenary and summary dispositions. None of this converts discretionary, error-noticing review into mandatory, error-correcting review.
Likewise, the Michigan Court of Appeals is not required to hear particular cases or correct particular errors. It may elect to hear cases when it finds the trial court‘s disposition questionable or dubious. Or it may elect to hear cases when it finds the trial court‘s disposition important or interesting. For all we know, it may (and probably does) consider both. Regardless, the Court of Appeals’ decision to grant review remains “discretionary,” because it does not depend on “whether there has been ‘a correct adjudication of guilt’ in every individual case.” Ross, 417 U.S., at 615. Like other courts of discretionary review, the Court of Appeals may opt to correct errors, ante, at 617–619, and n. 3—but it is not compelled to do so.
The majority appears to dispute that review before the Michigan Court of Appeals is truly discretionary, ante, at 618–619, and n. 4, but it provides no support for its speculation. Unlike the California Court of Appeal in Douglas,
The majority‘s holding suggests that Michigan‘s system would pass constitutional muster if the Court of Appeals recited “lack of importance in the grounds presented” as its ground for denying leave, ante, at 618–619, or if its decisional criteria were set forth in a statute, judicial decision, or court rule, ibid. Yet the relevant inquiry under Douglas and Ross is whether the Court of Appeals is obliged to review the case—not whether the Court of Appeals must or does offer a particular ground for declining review.
2
The majority also asserts that, without counsel, plea-convicted defendants who seek leave to appeal are “generally ill equipped to represent themselves.” Ante, at 617. This overgeneralizes Douglas’ rationale. The Douglas Court was concerned with the “barren record” that would follow a defendant on appeal. 372 U.S., at 356. For “where the record [was] unclear or the errors [were] hidden,” the appellate court would have difficulty detecting errors without the assistance of counsel. id., at 358.
This is in part why this Court in Ross did not extend the right to counsel to discretionary review before the North
The majority does not argue that indigent plea-convicted defendants who file leave applications do so with a “barren record,” Douglas, supra, at 356, or that the Michigan Court of Appeals lacks an “adequate basis” for reviewing their leave applications, Ross, supra, at 615. The Michigan Supreme Court put it best:
“[Michigan‘s] court rules require trial counsel to assist the defendant in organizing and presenting to the trial court any potential appellate issues that warrant preservation. Accordingly, a pro se defendant seeking discretionary review will have the benefit of a transcript, trial counsel‘s framing of the issues in the motion to withdraw, and the trial court‘s ruling on the motion.” Bulger, supra, at 518, 614 N.W.2d, at 113; see also
Mich. Ct. Rule 6.005(H)(4) (2005) .
As in Ross, these materials aid both the plea-convicted defendant and the Michigan Court of Appeals in identifying claims appropriate for plenary consideration. A plea-convicted defendant does not face a record unreviewed by counsel, and he does not lack any reasoned treatment of his claims. And, again, plea proceedings tend to be more transparent than trials, supra, at 629–630; “less danger exists in plea cases that the record will be so unclear, or the errors so hidden,” Bulger, supra, at 517, 614 N.W.2d, at 112, that the Michigan Court of Appeals will be unable to identify issues that deserve further examination on appeal. After all, the
The majority‘s unwillingness to confront the distinctions between Michigan‘s system and the California system at issue in Douglas is made clear by its reliance on Swenson v. Bosler, 386 U.S. 258 (1967) (per curiam). Swenson considered whether indigent defendants convicted at trial have a right to appointed counsel during their initial appeal as of right, even if the State provides indigent defendants with a trial transcript and a motion for a new trial prepared by trial counsel. Id., at 258–259. But Douglas had already answered that question, as this Court summarily declared: “[Appointed counsel] may not be denied to a criminal defendant, solely because of his indigency, on the only appeal which the State affords him as a matter of right.” 386 U.S., at 259 (emphasis added). Of course, Michigan‘s entire argument is that there is a “[r]easoned distinctio[n]” between defendants convicted following trials and pleas, as there is between appeals as of right and discretionary review. M.L.B., 519 U.S., at 111 (internal quotation marks omitted); Brief for Respondent 28. This Court‘s brief, per curiam opinion in Swenson did not consider, much less address, these arguments.
Lacking support in this Court‘s cases, the majority effects a not-so-subtle shift from whether the record is adequate to enable discretionary review to whether plea-convicted defendants are generally able to “[n]aviga[te] the appellate process without a lawyer‘s assistance.” Ante, at 621. This rationale lacks any stopping point. Pro se defendants may have difficulty navigating discretionary direct appeals and collateral proceedings, but this Court has never extended the right to counsel beyond first appeals as of right. Supra, at 627–628, and n. 1. The majority does not demonstrate that pro se defendants have any more difficulty filing leave appli-
In fact, this Court receives thousands of pro se petitions every year that list “the date and nature of the judgment or order appealed from,”
The majority then attempts to soften the blow by saying that it is doing the State a favor, because “providing indigents with appellate counsel will yield applications easier to comprehend.” Ante, at 623. Even assuming the majority‘s paternalism is accurate, there is no evidence that the Michigan courts currently have difficulty adjudicating leave applications. At the least, the majority leaves unexplained why the Michigan courts have greater difficulty than do state and federal courts considering discretionary direct appeals and collateral proceedings. And even assuming the Michigan courts have special difficulty, it is unlikely any marginal gains will offset the harms wrought by the majority‘s preference for redistributing resources to a set of generally less meritorious claims. Whether or not one agrees with
III
Even assuming that there is a right to appointed appellate counsel in these circumstances, the right, like the vast majority of other procedural rights, is waivable, despite the majority‘s dictum to the contrary. Moreover, Michigan‘s statutory prohibition on appointed appellate counsel does not prevent defendants from waiving any constitutional right to such counsel. And, in this case, Halbert‘s waiver was knowing and intelligent.
A
Legal rights, even constitutional ones, are presumptively waivable. United States v. Mezzanatto, 513 U.S. 196, 200–201 (1995); see also New York v. Hill, 528 U.S. 110, 114 (2000); Peretz v. United States, 501 U.S. 923, 936 (1991) (“The most basic rights of criminal defendants are . . . subject to waiver“). The presumption of waivability holds true for the right to counsel. This Court has held repeatedly that a defendant may waive that right, both at trial and at the entry of a guilty plea, so long as the waiver is knowing and intelligent. Iowa v. Tovar, 541 U.S. 77, 88 (2004); Faretta v. California, 422 U.S. 806, 835 (1975); Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942); Johnson v. Zerbst, 304 U.S. 458, 464–465 (1938). Michigan seeks a waiver no more extensive than those this Court has already sanctioned at other stages of a criminal proceeding: It asks defendants convicted by plea to waive the right to appointed counsel on appeal.
There may be some nonwaivable rights: ones “so fundamental to the reliability of the factfinding process that they may never be waived without irreparably discrediting the federal courts.” Mezzanatto, supra, at 204 (internal quotation marks and brackets omitted). The right to appointed counsel on discretionary appeal from a guilty plea, however,
Petitioner emphasizes the difficulty of the choice to which Michigan‘s statute puts criminal defendants: proceed to trial and guarantee the appointment of appellate counsel, or plead guilty and forgo that benefit. But this Court has repeatedly recognized that difficult choices are a necessary byproduct of the criminal justice system, and of plea bargaining in particular. See, e. g., Mezzanatto, supra, at 210; Brady v. United States, 397 U.S. 742, 750 (1970). Michigan‘s waiver requires a choice no more demanding than others criminal defendants regularly face.
B
The majority maintains, first, that Halbert could not waive the right to appointed appellate counsel because Michigan law afforded him no such right to waive; second, in dictum, that the right cannot be waived; and, third, that even if the
1
The majority claims that “[a]t the time he entered his plea, Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo.” Ante, at 623. This assertion apparently refers to the Michigan statute,
First, the statement that “Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel,” ante, at 623, is either incorrect or irrelevant. If we view (as we must) the waiver decision from the perspective of Halbert and other defendants before entering a plea, the statement is wrong as a matter of Michigan law. The Michigan Court Rules applicable at the time of Halbert‘s plea explicitly provided that he was entitled to appointed appellate counsel if convicted following a trial.
Alternatively, by stating that “Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel,” ante, at 623, the majority might mean that Michigan law afforded Halbert no right to appointed appellate counsel following a plea-based convic-
Second, even if the majority were correct about Michigan law, that is beside the point. At issue here is whether Halbert waived any federal constitutional right to appointed appellate counsel he might have enjoyed. Whether Michigan law provides for such counsel says nothing about whether a defendant possesses (and hence can waive) a federal constitutional right to that effect. That Michigan, as a matter of state law, prohibited Halbert from receiving appointed appellate counsel if he pleaded guilty or no contest is irrelevant to whether Halbert had (and could waive) an independent federal constitutional right to such counsel.
Third, the majority implies that if the existence of a right to paid appellate counsel had been something more than “no[t] recognized” at the time of Halbert‘s plea, then the right would have been waivable, ibid. What this cryptic statement means is unclear. But it cannot possibly mean that only rights that have been explicitly and uniformly recognized by statute or case law may be waived. If that is what the statement means, then the majority has outlawed all conditional waivers (ones in which a defendant agrees that, if he has such a right, he waives it).
I take it instead that the reference to rights that are something more than “no[t] recognized,” and hence waivable, ibid., means not just rights that are uniformly recognized, but also rights whose existence is unsettled. If this understanding of the majority‘s rule is correct, then the rule does not justify its claim that the constitutional right at issue was
The majority attempts to deflect this criticism by saying that “nothing in Halbert‘s plea colloquy indicates that he waived an ‘unsettled’ . . . but assumed right to the assistance of appointed appellate counsel, postplea.” Ante, at 623, n. 7. But any arguable inadequacy in the plea colloquy is a separate issue from, and is irrelevant to, the question at hand: whether the right was recognized, and hence waivable, by Halbert (or any other defendant deciding how to plead), irrespective of the content of the plea colloquy.
The majority compounds its error by expressing doubt in dictum that the right to appointed appellate counsel can be waived. Ante, at 624, n. 8. This ignores the well-established presumption of waivability, e. g., Mezzanatto, 513 U.S., at 200–201; Hill, 528 U.S., at 114. By ignoring the presumption, the majority effectively reverses it, espousing an analysis that is “directly contrary to the approach we have taken in the context of a broad array of constitutional and statutory provisions.” Mezzanatto, supra, at 200. For the proposition that Michigan‘s waiver requirement is unconstitutional, the majority cites Douglas, 372 U.S., at 357–358, and M.L.B., 519 U.S., at 110–113, which explained that States cannot create unreasoned distinctions between indigent and moneyed defendants. Ante, at 624, n. 8. These cases have nothing to do with waiver; they determined only that certain rights existed, not that they both existed and were nonwaivable.
The majority seems to think that Michigan‘s waiver requirement arbitrarily distinguishes between indigents and more affluent persons. As I have explained, however, the statute does no such thing. Rather, it sensibly differentiates between defendants convicted at trial and defendants convicted by plea. Supra, at 614–615. The majority‘s dictum fails to persuade.
3
In this case, the plea colloquy shows that Halbert‘s waiver was knowing and intelligent, and that any deficiency in the plea colloquy was harmless. See
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Today the Court confers on defendants convicted by plea a right nowhere to be found in the Constitution or this Court‘s cases. It does so at the expense of defendants whose claims are, on average, likely more meritorious. And it ignores that, even if such a right exists, it is fully waivable and was waived in this case. I respectfully dissent.