Patrick SIMMONS, Petitioner-Appellant, v. Robert KAPTURE, Respondent-Appellee.
No. 03-2609
United States Court of Appeals, Sixth Circuit
Argued: Sept. 14, 2006. Decided and Filed: Jan. 26, 2007.
474 F.3d 869
IV. CONCLUSION
Because the state courts did not follow clearly established Supreme Court precedent and because the error almost certainly influenced the jury‘s verdict, the district court should have granted Hamilton‘s petition for a writ of habeas corpus. I respectfully dissent.
Before MARTIN and DAUGHTREY, Circuit Judges; REEVES, District Judge.*
MARTIN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. REEVES, D.J. (pp. 879-88), delivered a separate dissenting opinion.
OPINION
BOYCE F. MARTIN, JR., Circuit Judge.
Petitioner Patrick Simmons appeals the district court’s denial of his petition for a writ of habeas corpus in which he sought to challenge his guilty plea entered in
I.
Simmons‘s guilty plea arose from an incident that occurred in April 1998 at the Rainbow Hotel in Grand Rapids, Michigan, where he was residing at the time. Simmons had become disabled in 1969 from a head injury, which he claims has caused him to suffer from “confusion” ever since. He had a severe problem with alcohol abuse, and appears to have been overindulging with some friends at the time, including the victim, Adrian Blystra, who was staying in Simmons‘s room at the hotel. On the morning of April 5, Simmons lit Blystra‘s shirt on fire, causing Blystra to suffer significant burns on his back and shoulder. The parties dispute what Simmons‘s intention was in setting the shirt on fire—he characterizes it as a practical joke, while the state describes his mental state in much more malicious terms.
Blystra continued to live in Simmons‘s apartment at the hotel for several more days, during which time Simmons provided him with Neosporin to help him treat his burn, but he eventually moved out. Toward the end of April, Blystra sought to have criminal charges brought against Simmons, and on April 30, Simmons was arrested and charged with assault with intent to do great bodily harm less than murder, as well as a habitual offender charge. In return for Simmons‘s agreement to plead guilty to the assault charge, the prosecutor dropped the habitual offender charge and agreed to recommend a sentence of five to ten years.
During the October 5, 1998 plea hearing, in an attempt to have Simmons “state the elements of the offense,” the prosecutor, defense counsel, and the trial judge asked him numerous questions about his intent in setting Blystra on fire. Simmons repeatedly stated that he set the fire as a joke, to wake Blystra up, and to get Blystra‘s attention. He also repeatedly denied attempting to injure Blystra, and stated that he was quite inebriated at the time. Eventually, however, Simmons agreed with the prosecutor‘s statement that he “went up to a man who was passed out, and [] lit him on fire, knowing that would cause him injury....” Joint App‘x at 246.
Both the prosecutor and defense counsel repeatedly tried to contradict Simmons‘s characterization of the incident as a joke. Defense counsel essentially cross-examined him about his intent, and argued to the court that Simmons had admitted sufficient mens rea for the court to accept his plea. The trial judge expressed significant hesitation in accepting the plea, in apparent recognition of Simmons‘s wavering explanations of his mental state. The judge noted that “he stated basically his intent was to wake Mr. Blystra up, and he didn‘t have any idea that he would be injured to any extent,” id. at 245, and described the explanation of Simmons‘s intent as “shaky.” Id. at 243. Eventually however, the trial court accepted the plea, explaining that “it‘s not per se that it will satisfy
II.
Simmons’s case followed a complicated procedural route between the entry of his guilty plea and his current filing in this Court. Just over a month after the entry of his plea, on November 19, 1998, Simmons requested that the trial court appoint him appellate counsel to assist him in filing an application for leave to appeal in the Michigan Court of Appeals. His proffered basis for appeal was that he had been forced by the terms of the plea offer to plead guilty. This request for counsel was denied on December 1. Simmons then filed an application for leave to appeal pro se in January 1999. That request was denied for failing to follow the court rules regarding the number of copies to be filed. On November 10, 1999, Simmons filed a pro se motion for relief from judgment in the trial court, challenging his plea on the basis that it was involuntary and not supported by the facts, and claiming ineffective assistance of counsel. This motion was also denied by the trial court, as was his subsequent motion for reconsideration. Simmons then filed another application for leave to appeal the trial court’s decision with the Michigan Court of Appeals, again without the assistance of counsel, which again was summarily denied. Simmons sought a discretionary appeal of the Court of Appeals’s decisions with the Michigan Supreme Court, and this final request to the state courts was also denied.1
Simmons next turned to the federal courts, filing a petition for writ of habeas corpus in the United States District Court for the Western District of Michigan on February 20, 2001. He claimed in the habeas petition that his plea was not supported by sufficient evidence, and that he was denied effective assistance of counsel at the plea stage. At the outset, Simmons sought a stay of the proceedings so as to obtain counsel. This request was denied by the district court. The district court also denied Simmons’s motion for an evidentiary hearing, and his case was referred to a magistrate judge. In a report and recommendation filed on September
The district court adopted the magistrate’s report and recommendation, and denied Simmons a certificate of appealability on November 7, 2003. This Court also denied Simmons’s application for a certificate of appealability on August 19, 2004. Undeterred after this string of rejections from the courts of Michigan and those of this Circuit, Simmons subsequently petitioned for a writ of certiorari with the United States Supreme Court. On June 28, 2005, the Supreme Court granted the writ, and simultaneously vacated the judgment and remanded to this Court for further consideration in light of Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). In response, this Court issued a certificate of appealability for the present appeal, which defined the issues of Simmons’s claim as (1) whether Halbert affords any relief for Simmons; (2) whether Simmons’s guilty plea was valid, and whether this issue has been waived; and (3) whether trial counsel was ineffective, and whether this issue has been waived.
III.
This Court reviews a district court’s decision regarding a writ of habeas corpus de novo. Dando v. Yukins, 461 F.3d 791, 795 (6th Cir.2006). Factual findings made by the district court are reviewed for clear error unless the factual determinations are made based on state court documents, in which case they are considered de novo. Id. at 796.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief on any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim either—
- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
- resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
A. The Supreme Court‘s Holding in Halbert
In Halbert v. Michigan, the Supreme Court held that “the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.” 125 S.Ct. at 2586. The Court noted that its decision was “framed by two prior [Supreme Court] decisions concerning state-funded appellate counsel,” Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In Douglas, the Court had held that states are required to appoint counsel for an indigent defendant‘s “first-tier” appeal as of right, reasoning that such an appeal involved the merits of the case and differs from subsequent levels of review where another appellate court has already reviewed the claims. In Ross, the Court declined to extend Douglas to require appointed counsel for “second-level” discretionary appeals filed with the North Carolina Supreme Court. The Ross Court distinguished Douglas by reasoning that “both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap [of proceeding pro se] far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas.” 417 U.S. at 616, 94 S.Ct. 2437.
In Halbert, the Court addressed Michigan‘s rule governing appeals from pleas of guilty or nolo contendere, which unlike most appeals from criminal convictions are not heard as of right, but only after the discretionary grant of a convicted defendant‘s application for leave to appeal. 125 S.Ct. at 2587-88. The Michigan Constitution was amended to include this provision in 1994, so as to reduce the workload of the Michigan Court of Appeals, which had previously “adjudicated appeals as of right from all criminal convictions.” Id. After the enactment of this provision, the Michigan Supreme Court determined that the Federal Constitution did not require the state to appoint appellate counsel for indigent defendants seeking review in the state Court of Appeals. Id. (citing People v. Bulger, 462 Mich. 495, 511, 614 N.W.2d 103 (Mich.2000)). Like Simmons, Halbert sought appointed counsel to file an application for leave to appeal his guilty plea. Id. at 2589-90. His requests were denied, as were his applications for leave to appeal by both the state Court of Appeals and the Michigan Supreme Court. Id. at 2590. The Supreme Court granted certiorari of the state supreme court‘s decision, and vacated the state courts’ judgments.
At the outset of its opinion, the Court in Halbert noted that although the Federal Constitution did not require states to provide any appellate review of criminal convictions whatsoever, “having provided such an avenue, [] a State may not ‘bolt the door to equal justice’ to indigent defendants.” Id. at 2586. The Court stated that its holding was based both on the Equal Protection concern regarding “the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs,” as well as the Due Process concern of “the essential fairness of the state-ordered proceedings.” Id.
The state argued that because an appeal from a guilty plea is discretionary pursuant to state law, the case should be governed by Ross. Halbert contended that Douglas required the state to appoint counsel for an application for leave to appeal with the Michigan Court of Appeals,
B. Application of Halbert to Simmons’s petition for habeas relief
There is no dispute that under the rule from Halbert, were Simmons’s plea to be entered today, the state would be required to appoint an attorney to represent him in filing an application for leave to appeal. The question we must address is whether the rule applies retroactively to affect Simmons’s habeas claim. Both parties recognize that Simmons’s conviction was final at the time of the Halbert decision, and that the applicability of Halbert turns on the Supreme Court’s holding in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), that new rules of criminal procedure do not generally apply retroactively to cases proceeding on collateral habeas review, unless they meet one of two specific exceptions. Simmons contends that Halbert applies retroactively because it did not create a new rule, but simply applied the existing rule from Douglas. In the alternative, Simmons argues that the Halbert rule falls under the Teague exception regarding “watershed rules of criminal procedure.” The state disagrees with both of these contentions, and argues that Teague’s general rule against retroactivity bars the application of Halbert to Simmons’s habeas petition.
The Teague Court explained what amounted to a “new rule” of criminal procedure as follows: “a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” 489 U.S. at 301, 109 S.Ct. 1060 (internal citations omitted). The Court has also noted that a decision does not announce a new rule where it “simply applie[s] a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.” Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (quoting Mackey v. United States, 401 U.S. 667, 695, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part)).
Under this approach, Simmons argues convincingly that Halbert did not announce a new rule at all, but merely applied the forty-year-old rule from Douglas that in a first-tier appeal from a criminal conviction, a state must provide appointed counsel for indigent defendants. The Supreme Court explicitly noted in Halbert that “Douglas provides the controlling instruction.” 125 S.Ct. at 2590. Even though Ross arguably represented analogous authority with its ruling that discretionary second-level appeals do not require appointed counsel, the Supreme Court has also explained that “the mere existence of conflicting authority does not necessarily mean that a rule is new.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Connor J., concurring)).
Moreover, the opinion in Ross emphasized that its holding was distinguishable from Douglas not because it involved discretionary appeals as opposed to appeals of right, as the state contends, but because it involved a second level of appellate review. The Ross Court explained that a defendant seeking leave to appeal in the North Carolina Supreme Court has already “received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals, [and t]hus prior to his seeking discretionary review in the State Supreme Court, his claims had ‘once been presented by a lawyer and passed upon by an appellate court.’” Ross, 417 U.S. at 614, 94 S.Ct. 2437 (quoting Douglas, 372 U.S. at 365, 83 S.Ct. 814). Further, the Ross Court explained that the North Carolina Supreme Court is primarily concerned with whether cases involve matters of significant public interest or legal principles of major significance, and unlike the first-level Court of Appeals, is not primarily concerned with “whether there has been a correct adjudication of guilt in every individual case.” Id. at 615, 94 S.Ct. 2437.
The state actually points to this part of the analysis in Ross to argue that its holding rests on whether review is discretionary or as of right, and that Halbert thus created a new rule by extending Douglas to discretionary appeals. Appellee’s Br. at 21. In fact the opposite is likely true. The relevant distinction identified by the Ross Court was that the North Carolina Supreme Court’s discretion to grant leave to appeal turned on the importance of the subject matter of the legal issue presented, and that it was not used to correct errors at the trial court level. See Ross, 417 U.S. at 615, 94 S.Ct. 2437 (“The Supreme Court [of North Carolina] may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect.”). It is the “error correction” role of the Michigan Court of Appeals (as opposed to the “deciding matters of public interest” role) that dictated the result in Halbert—not, as the state contends, whether the appeal in question was as of right or discretionary. Because the Michigan Court of Appeals acts to correct errors, even if it first exercises its discretion in deciding which potential errors to address, the result in Halbert is really an application of the “old rule” from Douglas.
The legal regime framed by Douglas and Ross thus required appointed appellate counsel at the first level of appellate review, but not at the second level. Significantly, when the Halbert Court examined the combined precedential value of Doug-
The state also relies on the Court‘s statement in Halbert that its decision was framed by Ross and Douglas to argue that this means it “broke new ground.” This argument is unconvincing. First, the simple fact that Halbert presented an issue that fell between two precedential cases with different results does not mean that the application of one of the prior holdings to the new situation created a new rule. Moreover, while the results in Ross and Douglas were opposite and may have formed bookends to the issue in Halbert, the analysis in Ross does nothing to refute the application of the holding in Douglas to first-tier appellate review. The critical distinction prior to Halbert—and before Simmons‘s guilty plea was entered—that in fact dictated the result in Halbert was that appointed appellate counsel is required for first-tier, but not second-tier appellate review. Halbert simply clarified this pre-existing distinction. Thus, although the results of Ross and Douglas may have “framed” the issue in Halbert, the holding of Halbert was virtually compelled by the analysis in both of the two prior cases, and cannot be said to represent a new rule.
Interestingly, before the Supreme Court‘s decision in Halbert, this Court addressed en banc the very same question in Tesmer v. Granholm, 333 F.3d 683, 701 (6th Cir.2003) (en banc), and declared that Michigan‘s denial of appointed counsel for first-tier applications of leave to appeal was unconstitutional:
Michigan‘s statute creates unequal access even to the first part of the appellate system. Though the judge-appellants argue that any distinctions in Michigan‘s appellate system stem from the fact the indigent pleads guilty, or that the appeal is merely discretionary, the effect is to create a different opportunity for access to the appellate system based upon indigency. As applied, the statute violates the due process provision of the Fourteenth Amendment to the United States Constitution, and is thus unconstitutional.
That decision was later reversed by the Supreme Court, which held, without reaching the merits, that the plaintiffs did not have standing to bring suit. Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). Although the Supreme Court‘s reversal rendered this Court‘s decision unenforceable and without precedential value, the opinion from this Court, which followed Douglas, offers persuasive support for the proposition that the decision in Halbert was dictated by Douglas, and that Halbert therefore did not announce a new rule. At a minimum, a majority of the active judges of this Court—who, unlike the Supreme Court, lacked the authority to extend Douglas—believed that the result in Halbert was commanded by Douglas. The Halbert decision later confirmed this reading of Douglas in a case where standing was deemed appropriate. While non-binding for present purposes, our pre-Halbert belief that Halbert was dictated by Douglas reinforces the same reading of these cases that we outline today.
The dissent does a thorough job of analyzing the opinions of those judges who,
We hold that the rule in Halbert is not a “new rule” under Teague, but instead merely applies the holding of Douglas. Halbert thus applies retroactively to Simmons‘s case, and Simmons is entitled to a writ of habeas corpus based on the state‘s failure to appoint him appellate counsel for his motion for leave to appeal his guilty plea. Because we are convinced that the rule from Halbert is not new, and therefore is unaffected by Teague’s retroactivity bar, we need not reach the question of whether Halbert falls into one of the Teague exceptions that allow retroactive application of a “new rule.”2 Simmons is thus entitled to a writ of habeas corpus on the ground that Michigan‘s refusal to appoint him appellate counsel to challenge his guilty plea was unconstitutional, as clarified in Halbert.
V.
Simmons also presents two independent grounds for habeas relief, arguing
The state also contends that Simmons waived both his ineffective assistance of counsel claim and his claim that his plea was not knowing and voluntary by initially pleading guilty. As Simmons points out, a waiver by way of a guilty plea can only be valid “if [the] guilty plea was knowing, voluntary, and intelligent.” United States v. Webb, 403 F.3d 373, 378 (6th Cir.2005). It is thus circular and unavailing to argue that by pleading guilty, a defendant waives his right to challenge the knowing and voluntary nature of the guilty plea. Similarly, because Hill allows challenges to guilty pleas on the basis of ineffective assistance of counsel, and every ineffective assistance of counsel claim challenging a guilty plea must necessarily be brought after entry of a guilty plea, allowing waiver through a guilty plea of a claim brought under Hill would render that case a nullity. We therefore reject the state‘s waiver arguments.
VI.
For the foregoing reasons, this case is remanded to the district court, with instructions to grant Simmons a writ of habeas corpus for the state‘s failure to appoint him appellate counsel under Halbert. The writ should also make clear that the state courts must allow Simmons to re-argue—with the assistance of appointed counsel—his ineffective assistance of counsel claim and his claim that his plea was not knowing and voluntary.
REEVES, District Judge, dissenting.
The majority finds that the rule announced in Halbert applies retroactively to Simmons’ case because it is not a “new rule” under the Teague analysis. Respectfully, I cannot agree with this conclusion. Reasonable jurists differed over whether the issue presented in Halbert was con-
I. Halbert announced a “new rule” that was not dictated by Douglas.
As the majority notes, it is not in dispute that Simmons’ conviction was final at the time of the Halbert decision. When a state court judgment is final, “Teague‘s nonretroactivity principle acts as a limitation on the power of federal courts to grant ‘habeas relief to state prisoner[s].‘” Beard v. Banks, 542 U.S. 406, 412, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (citing Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994)) (alteration in original). According to the Supreme Court, “[t]his should make clear that the Teague principle protects not only the reasonable judgments of state courts but also the States’ interest in finality quite apart from their courts.” Id. at 413, 124 S.Ct. 2504. “The ‘new rule’ principle therefore validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct. 1212, 108 L.Ed.2d 347 (1990).
Under Teague, a court must “survey the legal landscape as of that date” and determine if the rule announced “was dictated by then-existing precedent—whether, that is, the unlawfulness of [the] conviction was apparent to all reasonable jurists.” Lambrix v. Singletary, 520 U.S. 518, 527-28, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (emphasis in original). For a rule of criminal procedure to apply retroactively, the Teague inquiry requires more than a showing that the rule announced is the most reasonable application of prior law, rather it requires that “no other interpretation was reasonable.” Lambrix, 520 U.S. at 538, 117 S.Ct. 1517 (emphasis in original).
Here, the Michigan Supreme Court‘s holding that a defendant was not entitled to appointed counsel in a discretionary appeal from a plea-based conviction was a reasonable interpretation of Douglas and Ross and its progeny. The holding in Douglas had been consistently limited to first appeals as of right, and the Supreme Court never required the appointment of counsel for discretionary review until Halbert. Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 2597, 162 L.Ed.2d 552 (2005) (Thomas, J. dissenting). As this Court noted when it first addressed the issue in Tesmer v. Granholm, 333 F.3d 683 (6th Cir.2003) (en banc), rev‘d, Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004), “the [Supreme] Court has ruled on first appeals as of right and second, discretionary appeals, but not the discretionary first appeal at issue here.” Tesmer, 333 F.3d at 696. Additionally, neither Douglas nor Ross addressed the issue of appeals from plea-based convictions. Reasonable jurists differed over whether Michigan‘s system was controlled by Ross or Douglas, and the holding in
The majority rests its finding that Halbert did not announce a new rule on the fact that the Michigan system involved first level appellate review and “error correction.” According to the majority, “[b]ecause the Michigan Court of Appeals acts to correct errors, even if it first exercises its discretion in deciding which potential errors to address, the result in Halbert is really an application of the ‘old rule’ from Douglas.” However, such reasoning oversimplifies the application of Douglas to the Michigan system of appeals. Prior to its decision in Halbert, the Supreme Court had never extended Douglas to require the appointment of counsel for a discretionary appeal. Halbert, 125 S.Ct. at 2597 (Thomas, J., dissenting). When this Court first addressed the constitutionality of the Michigan system in the 2003 case of Tesmer v. Granholm, it noted that:
The judge-appellants are correct in stating that the Supreme Court has never held that a constitutional right to appointed counsel exists on all first appeals. The Court has yet to address the situation the statute presents, that of a discretionary first appeal. In addressing the issue of the right to appointed appellate counsel, the Court has ruled on first appeals as of right and second, discretionary appeals, but not the discretionary first appeal at issue here. We are left to fill in this gap.
Tesmer, 333 F.3d at 696. The dichotomy of the relevant Supreme Court precedents is further explained by Justice Thomas in his dissent in Halbert, which states that:
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. This Court has never required States to appoint counsel for discretionary review.
Halbert, 125 S.Ct. at 2597 (Thomas, J., dissenting).1
In applying Douglas, Ross, and the cases that followed, this Court in Tesmer noted that “[w]e cannot read into this discussion any mandate from the [Supreme] Court for states to provide appellate counsel in every instance. What we can take from the discussion is that appellate processes must be fair and may not be implemented in a manner that discriminates based on indigency.” Tesmer, 333 F.3d at 700. In Ross, the Supreme Court held that a state does not have to provide an appeal at all, but when it does, it must do so in a non-discriminatory manner. That is, defendants must be afforded “meaningful access to the appellate system.” Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). Following this rationale, the Michigan Supreme Court reasonably found that “[g]iven the obvious differences between trial-based and guilty plea convictions, it is clear that our current guilty plea procedures provide sufficient methods of assistance to meet the Ross meaningful access requirement.” People v. Bulger, 462 Mich. 495, 518, 614 N.W.2d 103 (Mich.2000). The state supreme court reasoned that guilty pleas were sufficiently different from convictions after trials because of (1) the state‘s interest in finality, (2) the “shorter, simpler, and more routine” nature of the plea proceedings which lead to a clear trial record from which the appellate court can decide whether to permit review, and (3) the limitation on issues for review when a defendant pleas guilty. Bulger, 462 Mich. at 516-17, 614 N.W.2d 103. The dissent in Halbert agreed with the Michigan Supreme Court‘s reasonable interpretation of constitutional requirements and precedent and found that Douglas “does not support extending the right to counsel to any form of discretionary review, as Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), and later cases maker clear.” Halbert, 125 S.Ct. at 2596 (Thomas, J., dissenting). According to Justice Thomas, “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.” Id.
The majority also points to the Supreme Court‘s statement in Halbert that “Douglas provides the controlling instruction” in support of its holding that Halbert did not announce a new rule. Halbert, 125 S.Ct. at 2590. Contrary to this contention, the Supreme Court has held that such statements do not indicate that the state court acted unreasonably:
Butler, 494 U.S. at 415, 110 S.Ct. 1212. The language used by the Supreme Court, such as “controlling instruction,” “classification question,” and “Halbert’s case is properly ranked with Douglas rather than Ross” does not rise to the level of dictating the result as required by Teague. The Michigan Supreme Court reached a “reasonable contrary conclusion” regarding the application of Douglas and Ross to the Michigan system, and the holding in Halbert should be considered a new rule for purposes of the Teague retroactivity analysis.
Moreover, although the Supreme Court has stated that the “mere existence of a dissent” is not sufficient to show that a rule is new “[b]ecause the focus of the inquiry is whether reasonable jurists could differ as to whether precedent compels the sought-for rule,” the Court has relied on dissents in its own decisions for that very premise. Beard v. Banks, 542 U.S. 406, 416 n. 5, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004) (emphasis in original). In Beard, the Supreme Court addressed the retroactive application of a rule of criminal procedure under circumstances similar to the present case.2 Id. at 410, 124 S.Ct. 2504. The Court had based its “new rule” on a line of cases similar, but not exactly identical, to the one before the court. Id. Thereafter, the Third Circuit held that the rule applied retroactively and was not barred by Teague, and the Supreme Court reversed. Id. The Supreme Court held that the essential, determining factor was that the prior cases did not mandate the result. Id. at 414, 124 S.Ct. 2504. (“The generalized Lockett rule (that the sentencer must be allowed to consider any mitigating evidence) could be thought to support the Court’s conclusion in Mills and McKoy. But what is essential here is that it does not mandate the Mills rule.”). The Court found that there was a distinguishing factor in the precedential line of cases that was not present in the case announcing the new rule. Id. The Court further relied on the dissent in the case announcing the new rule to show that “there is no need to guess” if reasonable jurists could differ as to whether the precedent compelled the result. Beard, 542 U.S. at 415, 124 S.Ct. 2504.
The present case can be substantially analogized to the Supreme Court’s reasoning in Beard. In Halbert, the Court based its decision on the Douglas line of cases, but Douglas did not mandate the result. Although some of the factors articulated by the Court in Douglas influenced the
Finally, as in Beard, “there is no need to guess” whether reasonable jurists could differ as to whether Douglas compelled the result in Halbert, as three justices agreed with the Michigan Supreme Court and found that Michigan’s system for appellate counsel was constitutional under Douglas and Ross. Halbert, 125 S.Ct. at 2595 (Thomas, J., dissenting).3 Justice Thomas’ dissenting opinion follows much of the same analysis as the Michigan Supreme Court and disputes the majority’s findings that the discretionary review system is an adjudication on the merits and that a defendant is not sufficiently equipped to apply for leave to appeal. Justice Thomas repeatedly states that “the rationale of Douglas does not support extending the right to counsel to this particular form of discretionary review.” Id. at 2597. The dissent also disagrees with the majority’s finding that the Michigan Court of Appeals adjudicates on the merits, as “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.’ Like other courts of discretionary review, the Court of Appeals may opt to correct errors, but it is not compelled to do so.” Id. at 2599 (citations omitted).
As noted previously, every panel that addressed the issue presented in Halbert was unable to reach a unanimous decision. The Supreme Court‘s decision in Halbert was 6-3, with Justices Thomas, Scalia, and Chief Justice Rhenquist dissenting. Halbert, 125 S.Ct. at 2582. The Sixth Circuit had previously addressed the issue en banc in 2003 in Tesmer v. Granholm, and reached a 7-4 decision, finding the Michigan system unconstitutional under Douglas. Tesmer, 333 F.3d 683.4 Even the Michigan Supreme Court was divided in People v. Bulger, in which it affirmed the constitutionality of the Michigan system in
The retroactivity test articulated by the Court in Teague is not determined by the fact that the Supreme Court applied existing case law in reaching its decision, but rather asks if reasonable jurists could differ as to whether the prior law compelled the result in the current decision. Beard, 542 U.S. at 414, 124 S.Ct. 2504. The State convincingly argues that the Court’s decision in Halbert was framed by two Supreme Court decisions and that reasonable jurists could and did differ as to which classification the Michigan system of appeals belonged. For a rule of criminal procedure to be considered something other than a new rule under Teague, “no other reasonable interpretations” of then-existing law can exist. Two cases reasonably governed the result of the Halbert decision, and the rule announced in Halbert should be considered a “new rule” under Teague.
II. The right to counsel in a discretionary appeal from a plea-based conviction does not fall under Teague’s second exception for “watershed rules of criminal procedure.”
Because the majority finds that Halbert did not announce a new rule, it does not reach the second Teague inquiry as to whether the rule announced falls under one of the two Teague exceptions.5 The parties agree that the first exception is not relevant in the present case. However, the Petitioner contends that rule announced in Halbert fits into the second exception, which is reserved for “‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” Saffle v. Parks, 494 U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990)(citing Teague, 489 U.S. at 311, 109 S.Ct. 1060). As the Supreme Court noted in Teague, this exception is to be construed narrowly “[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Teague, 489 U.S. at 313, 109 S.Ct. 1060. “Whatever the precise scope of this exception, it is clearly meant to apply only to a small core of rules requiring ‘observance of those procedures that ... are implicit in the concept of ordered liberty.’” Graham v. Collins, 506 U.S. 461, 478, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (citing Teague, 489 U.S. at 311, 109 S.Ct. 1060).
The Supreme Court has never retroactively applied a new rule of criminal procedure under the watershed rule exception post--Teague. Beard, 542 U.S. at 417, 124 S.Ct. 2504. In its most recent case addressing the possible retroactive application of a new rule, the Court held that even “the fact that a new rule removes some remote possibility of arbitrary infliction of the death sentence does not suffice to bring it within Teague’s second exception.” Id. at 419-20, 124 S.Ct. 2504. The Court looked to the fact that the rale in question “applies fairly narrowly and works no fundamental shift in ‘our understanding of the bedrock procedural elements’ essential to fundamental fairness.” Id. (emphasis in original). The Court also
The right to counsel in an application for leave to appeal a plea-based conviction does not fit into this narrowly drawn exception for “watershed rules of criminal procedure” or “bedrock procedural elements.” The right to counsel has historically been applied retroactively, such as in Daegele v. Kansas, 375 U.S. 1, 84 S.Ct. 89, 11 L.Ed.2d 44 (1963), which retroactively applied Douglas, and Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968), which retroactively applied White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (establishing the right to counsel in plea hearings), but these cases were decided prior to the Supreme Court’s establishment of the Teague test for retroactive application of new rules on collateral review. As the Eleventh Circuit noted recently, “[b]ecause of the substantial difference in analysis, the pre-Teague decisions applying Gideon-related rights retroactively do not control whether a post-Teague decision announcing a new one is retroactively applicable.” Howard v. United States, 374 F.3d 1068, 1078 (11th Cir.2004).
The Petitioner accurately points out that the Supreme Court has repeatedly identified Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which “established an affirmative right to counsel in all felony cases” as the example of a “watershed rule of criminal procedure.” Beard, 542 U.S. at 418, 124 S.Ct. 2504. However, the Petitioner6 misrepresents the Court’s use of Gideon as an example to include all cases involving the right to counsel. (Petr.’s Br. at 21) In contrast, the Court has stated that Gideon is the prime example because of its “sweeping nature” and the “primacy and centrality of the rule adopted.” Id.; Saffle, 494 U.S. at 495, 110 S.Ct. 1257. Accordingly, the Court has “not hesitated to hold that less sweeping and fundamental rules do not fall within Teague’s second exception.” Beard, 542 U.S. at 418, 124 S.Ct. 2504.
For a “new rule” to fit within this exception, failure to apply it retroactively must “undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction.” Teague, 489 U.S. at 315, 109 S.Ct. 1060. Although the Supreme Court has repeatedly affirmed that the right to counsel at all felony trials is exactly the kind of “watershed rule” that this exception is designed to address, that rule is significantly broader and more fundamental that the narrow rule announced in Halbert. In Halbert, the Supreme Court held “that the Due Process and Equal
The Petitioner‘s argument is not supported by the Supreme Court‘s analysis post-Teague. The rule announced in Halbert is unlikely to apply to any situation other than the particular system of appeals from plea-based convictions established by the Michigan legislature. It does not represent a shift in “bedrock procedural elements” and it cannot be said to be “on par” with Gideon. See Beard, 542 U.S. at 418, 124 S.Ct. 2504. The purpose of the “watershed rules of criminal procedure” exception to the general rule prohibiting retroactive application of new rules of criminal procedure on collateral review is to provide for accuracy in convictions and the “fundamental fairness of the trial.” Teague, 489 U.S. at 312, 109 S.Ct. 1060. The scope of that exception is limited “to those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. at 313, 109 S.Ct. 1060. In Ross, the Court stated that,
[t]he fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Douglas v. California, supra. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty.
Ross, 417 U.S. at 611, 94 S.Ct. 2437 (emphasis in original).
Moreover, the denial of the right to counsel in an appeal does not rise to the level of providing “fundamental fairness at trial” because, as the Supreme Court stated in Goeke v. Branch, 514 U.S. 115, 120, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995), “due process does not require a State to provide appellate process at all.” Goeke, 514 U.S. at 120, 115 S.Ct. 1275 (holding that the Eighth Circuit‘s ruling that “it is a violation of Fourteenth Amendment due process for a state appellate court to dismiss the appeal of a recaptured fugitive where there is no demonstrated adverse effect on the appellate process” did not apply retroactively under the second Teague exception). In Goeke, the Court held that “[b]ecause due process does not require a State to provide appellate process at all, a former fugitive‘s right to appeal cannot be said to ‘be so central to an accurate determination of innocence or guilt,’ as to fall within this exception to the Teague bar.” Id. (citations omitted).
Additionally, the Gideon rule establishing the right to counsel at all felony trials is significantly different from the instant rule establishing the right to counsel in a discretionary appeal from a plea-based conviction. The Supreme Court has stated that a “defendant needs an attorney on appeal not as a shield to protect him against being ‘haled into court’ by the State and stripped of his presumption of his innocence, but rather as a sword to upset the prior determination of guilt.” Ross, 417 U.S. at 610-11, 94 S.Ct. 2437. As Justice Thomas noted in his dissent in Halbert, “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,’ the potential issues that can be raised on appeal are more limited.” Halbert, 125 S.Ct. at 2598 (Thomas, J. dissenting) (citations omitted). Similarly, the Michigan Supreme Court reasoned that,
[p]lea 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.
Bulger, 462 Mich. at 517, 614 N.W.2d 103. Accordingly, the Supreme Court‘s “new rule” requiring that defendants receive appointed counsel in discretionary appeals from plea-based conviction does not rise to the requisite level of implicating the “fundamental fairness at trial” and, therefore, does not fit into Teague‘s exception for watershed rules of criminal procedure. Teague, 489 U.S. at 312, 109 S.Ct. 1060.
Because the rule announced in Halbert narrowly applies to discretionary appeals from plea-based convictions, and because due process does not require that a state provide an appeal at all, Teague‘s retroactivity analysis prohibits the application of Halbert‘s holding on collateral review.
III. Conclusion
The Supreme Court announced a new rule in Halbert, that the Due Process and Equal Protection Clauses require the appointment of counsel for defendants seeking leave to appeal from a plea-based conviction under the Michigan system. This rule does not fit into the narrowly-drawn Teague exception for “watershed rules of criminal procedure” and “bedrock procedural elements” and, thus, should not apply retroactively to Simmons’ case. Therefore, I respectfully dissent from the majority‘s finding that Halbert affords Simmons relief on collateral review.