Simmons v. Kapture

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0077p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

PATRICK MARVIN SIMMONS,

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No. 03-2609

v.

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ROBERT KAPTURE, Warden, -

Respondent-Appellee. -

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Appeal from the United States District Court

for the Western District of Michigan at Marquette.

No. 01-00027—Gordon J. Quist, District Judge.

Argued: September 12, 2007

Decided and Filed: February 15, 2008

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE,

CLAY, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.*

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COUNSEL

ARGUED: E. Michael Rossman, JONES DAY, Columbus, Ohio, for Appellant. Eric Restuccia,

ASSISTANT ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: E. Michael

Rossman, JONES DAY, Columbus, Ohio, for Appellant. Eric Restuccia, ASSISTANT

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ROGERS, J., delivered the opinion of the court, in which BOGGS, C. J., BATCHELDER,

GILMAN, GIBBONS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 3-8),

delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ.,

joined.

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OPINION

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ROGERS, Circuit Judge. The issue in this case is whether the rule of criminal procedure

recently articulated by the Supreme Court in Halbert v. Michigan, 545 U.S. 605 (2005), applies

retroactively to cases on collateral habeas corpus review. In Halbert, the Court held that the Equal

Protection and Due Process clauses require the appointment of counsel for indigent defendants

seeking first-tier review of plea-based convictions in the Michigan Court of Appeals, even when

*

Judge Sutton took no part in the consideration or decision of this case.

1

No. 03-2609 Simmons v. Kapture Page 2

such appeals are discretionary rather than as of right. Id. at 609-10. Because petitioner Patrick

Simmons’s state conviction was final when the Court decided Halbert, Halbert’s applicability to the

instant action is governed by Teague v. Lane, 489 U.S. 288 (1988). Under Teague, a “new rule” of

criminal procedure does not apply retroactively to cases proceeding on collateral habeas review

unless the rule either decriminalizes a class of conduct or is a “watershed” rule that implicates the

fundamental fairness and accuracy of a criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494-95

(1990) (citing Teague, 489 U.S. at 311). A majority of the original panel in this case concluded that

Halbert simply involved the application of an existing rule and thus, consistent with Teague, Halbert

has retroactive effect. Simmons v. Kapture, 474 F.3d 869 (6th Cir. 2007). We granted rehearing en

banc and vacated the prior panel’s decision.

Supreme Court precedent compels the conclusion that Teague bars the retroactive application

of Halbert on collateral review. In short, Halbert announced a “new rule,” and that new rule neither

decriminalizes a class of conduct nor is a “watershed” rule. The legal analysis in support of these

conclusions — which fully addresses the arguments presented in the en banc dissent — is

thoroughly set forth in the panel dissenting opinion of District Judge Reeves, sitting by designation,

and no purpose would be served by recapitulating it. We incorporate that analysis here. See id. at

879-88 (Reeves, J., dissenting). Because Halbert is inapplicable to this case under Teague, we need

not address the warden’s contention that, in any event, the language of 28 U.S.C. § 2254(d)(1)

forbids reliance on a new rule that is sought to be applied retroactively.

The panel did not reach petitioner’s additional claims that his plea was not knowing and

voluntary, and that his trial counsel provided ineffective assistance. We return those claims to the

panel for review and decision.

No. 03-2609 Simmons v. Kapture Page 3

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DISSENT

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BOYCE F. MARTIN, JR., Circuit Judge, dissenting, in which Judges Daughtrey, Moore,

Cole and Clay join. The majority’s adopted opinion1 finds that the rule announced in Halbert v.

Michigan, 545 U.S. 605 (2005), does not apply retroactively to Simmons’s case because it is a “new

rule” under the Teague analysis. Teague v. Lane, 489 U.S. 288, 301 (1988). As I stated in the

original majority opinion in this case, retroactivity analysis is an inexact 2science. Apparently the

en banc majority thinks that any inexactitude is an opportunity for reversal and has created with its

adopted opinion an arbitrary and unfair result that denies a significant group of people the

opportunity to vindicate their constitutional rights. The new opinion misstates Halbert’s rule and

finds that it turns on the discretionary nature of first-tier appeals from plea-based convictions. This

proposition goes against the plain words of the Supreme Court, as well as the rationale behind the

Halbert decision. Halbert’s rule is dictated by, and inextricably linked to, the longstanding rule that

a state must provide counsel for indigent defendants in a first-level appeal from a criminal

conviction. This rule was established long ago in Douglas v. California, 372 U.S. 353 (1963). The

majority’s reliance on the precedent set by Ross v. Moffit is misplaced; Ross, too, reiterated that a

state cannot adopt procedures that leave an indigent defendant “entirely cut off from any appeal at

all” by virtue of his indigency. 417 U.S. 600, 612 (1974) (citing Lane v. Brown, 372 U.S. 477, 481

(1963)). The rule is thus not new. Moreover, even if considered “new,” it is clearly a watershed

rule of criminal procedure because it addresses the fundamental right to counsel, which is necessary

to provide the accuracy and fundamental fairness that must underlie a conviction. Teague, 489 U.S.

at 315; see also Gideon v. Wainright, 371 U.S. 335 (1963).

I.

The majority creates an arbitrary window in time during which acknowledged constitutional

rights continue to be denied. A bit of background illuminates the problem. In 1994, Michigan

amended its constitution to restrict appeals from pleas of guilty or nolo contendere in an effort to

reduce the workload of the Michigan Court of Appeals. The purpose of the amendment, however,

was never to deny poor defendants the right to counsel. Indeed, the Michigan State Bar Task force,

which was charged with recommending solutions to the Appellate Court backlog, stated in its

recommendations that “the rights to counsel and to a transcript of the proceedings would remain”

in both guilty plea and nolo contendere appeals. Robert B. Webster, Introduction to the Report of

the Task Force on Appellate Courts, 7 MICH. B.J. 895 (1993), cited in Note, Limiting Michigan’s

Guilty and Nolo Contendere Plea Appeals, 73 U. DET. MERCY L. R. 431, 448 (1996). Recognizing

that some trial judges and legislators were reading the amendment as abolishing the right to

appointed counsel for defendants who sought to appeal their guilty or nolo contendere pleas, the

State Appellate Defender’s Office Director, James R. Neuhard, wrote a letter to Chief Justice

Cavanagh on the Michigan Supreme Court stating that “the language of the amendment very

obviously does not change the language regarding the right to counsel on appeal.” Letter from the

State Appellate Defender Office to Chief Justice Michael F. Cavanagh, at 2 (Dec. 22, 1994) (on file

1

The en banc court merely adopted the dissent of the prior panel’s opinion, Simmons v. Kapture, 474 F.3d 869

(6th Cir. 2007).

2

I reiterate the concerns expressed by Judge Moore in her dissent in Bell v. Bell, 2008 U.S. App. LEXIS 155,

at *76 (6th Cir. January 28, 2008), in which she notes that under both the Federal Rules of Appellate Procedure and our

own circuit rule, en banc review may not be used to exercise plenary review over panel decisions. See FED. R. APP. P.

35(a); 6 CIR. R. 35(c). I reiterate those concerns, and feel that yet again in our Circuit, en banc review was improperly

granted.

No. 03-2609 Simmons v. Kapture Page 4

with University of Detroit Mercy Law Review), cited in 73 U. DET. MERCY L.R. at 449. The

Michigan Supreme Court later reiterated this understanding. People v. Bulger, 614 N.W.2d 103, 107

(Mich. 2000) (“Proposal B did not alter the provision of art 1, § 20 that grants defendants “as

provided by law, when the trial court so orders, . . . such reasonable assistance as may be necessary

to perfect and prosecute an appeal.”). On December 30, 1994, the Michigan Supreme Court adopted

an interim rule, MCR 6.425(F)(1)(c), which provided that “in a case involving a conviction

following a plea of guilty or nolo contendere the court should liberally grant the request [for

appointed counsel] if it is filed within 42 days after sentencing.” Id. at 505. The court later

extended the rule indefinitely, citing the need “to protect an indigent defendant’s ability to have the

assistance of counsel in pursuing appellate remedies.” Id., MCR 6.425(G)(1)(c).

The unfortunate window opened with the help of a law providing that those who plead guilty

generally “shall not have appellate counsel appointed for review of the defendant’s conviction or

sentence,” MICH. COMP. LAWS ANN. § 770.3a (2000), a law this Court found unconstitutional in

Tesmer v. Granholm, 333 F.3d 683 (6th Cir. 2003) (en banc), rev’d on standing, Kowalski v. Tesmer,

543 U.S. 125 (2004). The window finally closed with Halbert in 2005, which guaranteed the right

to counsel on first-level appeals in plea-based convictions. For the limited group of people who

pleaded while the window was open, however, the majority’s adopted opinion arbitrarily and

unfairly ensures that the unconstitutional law lives on.

II.

In 1963, the Supreme Court established the rule that a state must provide counsel for indigent

defendants in a first-level appeal from a criminal conviction. See Douglas v. California, 372 U.S.

353. Halbert is dictated by, and inextricably linked to, this rule and is thus not new. The Supreme

Court in Teague v. Lane explained what amounts 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

(internal citations omitted). Justice Harlan himself noted long before Teague 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.” Mackey v. United States, 401 U.S. 667, 695 (1971) (Harlan, J., concurring in part

and dissenting in part); see also Penry v. Lynaugh, 492 U.S. 302, 314 (1989) (citing with approval

Justice Harlan’s approach to retroactivity).

Under this approach, Halbert did not announce a new rule but merely applied the

forty-year-old rule from Douglas that in a first-level appeal from a criminal conviction, a state must

provide appointed counsel for indigent defendants. This conclusion is apparent not only in the

language of Halbert itself, but also in the rationale behind Ross v. Moffit, in the error-correcting

function of the appellate courts in Michigan, and in our own Court’s prior treatment of this topic.

I turn first to the language of Halbert and the adopted majority’s contention that the

discretionary nature of the appeals at issue made its ruling “new.” The Supreme Court itself

squarely and explicitly rejected this analysis, stating instead that it was the error-correction role of

the court that made the difference:

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 . . . . 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 . . . . By contrast,

No. 03-2609 Simmons v. Kapture Page 5

the Michigan Court of Appeals, because it is an error-correction instance, is guided

in responding to leave to appeal applications by the merits of the particular

defendant’s claims, not by the general importance of the questions presented.

Halbert, 605 U.S. at 618 (internal citations omitted). There, the Court recognized that potential

appellants were being “disarmed in their endeavor to gain first-tier review,” the exact situation

presented in Douglas. Halbert, 605 U.S. at 619. The Court thus plainly states that “Douglas

provides the controlling instruction.” 545 U.S. 605 at 616-617; see also id. at 610 (“[we] conclude

that Halbert’s case is properly ranked with Douglas rather than Ross”). The adopted majority

opinion in this case does an admirable job of trying to parse the words of the Halbert Court and of

other courts in subsequent decisions, but the Supreme Court itself has instructed us that the presence

of dissenting opinions does not construct an absolute barrier to a determination that one of its

decisions did not create a new rule under Teague. See Beard v. Banks, 542 U.S. 406, 416 n.5

(2004); Williams v. Taylor, 529 U.S. 362, 410 (2000).

Next, I examine the language and rationale behind Ross v. Moffit. 417 U.S. 600 The adopted

majority opinion tries to place Halbert in a no-man’s land between Douglas and Ross, suggesting

that any rule that depends on both opinions would necessarily be a “new rule.” This is a

mischaracterization both of the opinions themselves and Halbert’s reliance on Douglas. Looking

at the opinions, Douglas required counsel in first-tier appeals, holding that an indigent’s “one and

only appeal” must not be decided without the benefit of counsel. 372 U.S. at 357. The Ross Court

forcefully restated this rule: “the State cannot adopt procedures which leave an indigent defendant

entirely cut off from any appeal at all by virtue of his indigency.” 417 U.S. at 612 (internal citations

omitted). Moreover, the opinion in Ross emphasized that its holding was distinguishable from

Douglas. The adopted majority opinion claims that this was because Ross, like Simmons’s case,

involved discretionary appeals as opposed to appeals of right. This is simply not true. The defining

feature of Ross was that it involved a second level of appellate review. This second level had two

features: the nature of the cases and the ability to appeal effectively. With regard to the first point,

the Ross Court emphasized that the appeal in question there was to be heard by a court that was

primarily concerned with whether cases involve matters of significant public interest or legal

principles of major significance, not to correct errors at the trial court level. See Ross, 417 U.S. at

615 (“The Supreme Court [of North Carolina] may deny certiorari even though it believes that the

decision of the Court of Appeals was incorrect.”).

Second, and more importantly, the Ross Court explained that a defendant seeking leave to

appeal in the North Carolina Supreme Court had 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 (quoting Douglas, 372 U.S. at 365). The Ross decision assumed that a petitioner seeking

leave to appeal to a second appellate court “will have, at the very least, a transcript or other record

of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error,

and in many cases an opinion by the Court of Appeals disposing of his case.” 417 U.S. at 615. It

thus held that subsequent appeals did not require counsel. But that analysis cannot be applied

satisfactorily to a plea-based conviction, because the defendant will likely not have any sort of

opinion “disposing of his case” from which to work if he attempts to withdraw his plea or move for

resentencing citing a purported error. It is simply unrealistic to expect an appellant to develop a

record sufficient to pass the high bar for a certificate of appealability without the assistance of

appointed appellate counsel in this situation.

It is the “error correction” role of the Michigan Court of Appeals that dictated the result in

Halbert – not whether the appeal in question was discretionary. See Halbert, 545 U.S. at 618

(rejecting Michigan’s argument that the discretionary nature of the appeal was controlling). As the

No. 03-2609 Simmons v. Kapture Page 6

Supreme Court held, 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 an

application of the “old rule” from Douglas. When the Halbert Court examined the combined

precedential value of Douglas and Ross, it followed the same distinction that the Ross Court did,

recognizing a stronger claim for appointed appellate counsel in first-tier appellate review than in

second-tier review. Under this view, it was simply a tangentially-related circumstance that most

first-level appeals in state courts happen to be as of right, while second-level appeals tend to be

discretionary. It necessarily follows that Halbert was dictated by Douglas, and therefore does not

create a new rule under Teague.

Notably, before the Supreme Court’s decision in Halbert, this Court addressed en banc the

very same question presented here and concluded that Halbert was dictated by Douglas. See Tesmer

v. Granholm, 333 F.3d 683, 701 (6th Cir. 2003) (en banc). There, we declared Michigan’s denial

of appointed counsel for first-level applications of leave to appeal 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 (2004).

Although the Supreme Court’s reversal rendered this Court’s decision unenforceable and without

precedential value, the Tesmer opinion, which relied on 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

conclusion that Halbert was dictated by Douglas reinforces the logic that no new rule was created.

III.

Even assuming, arguendo, that Halbert did establish a new rule, this rule amounts to an

extension of the right to counsel after a plea-based conviction and should be applied retroactively

under Teague because it pertains to the right to counsel and has a significant impact on the accuracy

of a conviction.

Under Teague, even if a rule of criminal procedure is “new,” it still may apply retroactively

on collateral review if it meets one of two exceptions. 489 U.S. at 311. The first exception calls for

a rule to be “applied retroactively if it places ‘certain kinds of primary, private individual conduct

beyond the power of the criminal law-making authority to proscribe.’” Id. This exception is not

relevant here. The second exception covers what Teague termed “watershed rules of criminal

procedure,” which the Court described as “those new procedures without which the likelihood of

an accurate conviction is seriously diminished.” Id. at 311, 313. Significantly, in defining these

exceptions to the general rule against retroactivity, the Teague Court quoted Justice Harlan’s earlier

commentary, pointing to the right to counsel at trial as a primary example of a “watershed rule” that

seriously impacts the accuracy of a conviction. Id. at 311. The Supreme Court has recently noted

that rules falling under the second exception are rare. See Beard 542 U.S. at 417. Even so, there

No. 03-2609 Simmons v. Kapture Page 7

is a test for a reason, and that reason is not simply to tease appellants and the lower courts by

creating a standard that can never be met.

The Supreme Court has continued to emphasize that decisions involving the right to counsel

are the paradigmatic examples of watershed rules. Id. at 417 (“[i]n providing guidance as to what

might fall within this exception, we have repeatedly referred to the rule of Gideon v. Wainwright,

372 U.S. 335 (1963) (right to counsel), and only to this rule.”). At its core, the Halbert decision is

about the right to counsel, which brings it within the ambit of the watershed exception. In 2002, the

Eleventh Circuit applied retroactively the rule from Alabama v. Shelton, 535 U.S. 654 (2002)

(prohibiting the use of prior uncounseled state court convictions in a defendant’s criminal history

for sentencing purposes) based on the reasoning that Shelton extended the right to counsel. Howard

v. United States, 374 F.3d 1068, 1080 (11th Cir. 2004)3. Although the Eleventh Circuit recognized

how narrow the Teague watershed exception is, it added that “[t]he exception that proves the

exception, however, is a new Gideon-related rule” and that “[a]t the risk of oversimplification, for

purposes of the second Teague exception there are new rules, and then there are new Gideon-

extension rules.” 374 F.3d at 1080. The Howard court catalogued numerous pre-Teague cases

where the Supreme Court had applied new rules regarding the right to counsel retroactively,

including the holding of Gideon itself, 372 U.S. at 344-45, which was judged to be retroactively

applicable in Kitchens v. Smith, 401 U.S. 847, 847 (1971). The right to counsel at plea hearings,

recognized in White v. Maryland, 373 U.S. 59 (1963), was held to be retroactively applicable in

Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968). The right to counsel at probation revocation

hearings, announced in Mempa v. Rhay, 389 U.S. 128 (1967), was held to be retroactively applicable

in McConnell v. Rhay, 393 U.S. 2, 3-4 (1968). The right to counsel in any prosecution leading to

actual imprisonment announced in Argersinger v. Hamlin, 407 U.S. 25, 40 (1972), was deemed

retroactively applicable in Berry v. City of Cincinnati, 414 U.S. 29, 29-30 (1973). Finally, the right

to counsel on first-tier appeals, recognized in Douglas, has also been retroactively applied, see

McConnell, 393 U.S. at 3. This point bears restating: the case that was most similar to Halbert (and

dictated the result there, arguably preventing it from being a new rule in the first place) was

Douglas, which the Supreme Court noted was applied retroactively. 393 U.S. at 3. As the Howard

court said, “A score that is perfect packs punch in any analysis.” 374 F.3d at 1077-1078.

The adopted majority opinion argues against the proposition that all fundamental right-to-

counsel cases fall within the Teague exception, citing instead the need to guarantee fundamental

fairness “at trial.” This interpretation ignores the purpose of such a guarantee. The reason that trial

guarantees are so important is that without them, “the likelihood of an accurate conviction is

seriously diminished.” Teague, 489 U.S. at 313. Appeals after guilty pleas, too, directly implicate

a procedure without which the accuracy of a conviction cannot be assured. See Halbert, 545 U.S.

at 617 (“Of critical importance, the tribunal to which he addresses his application, the Michigan

Court of Appeals, unlike the Michigan Supreme Court, sits as an error-correction instance.”). In

2002, ninety-five percent of state-court felony convictions and ninety-six percent of federal

convictions were obtained by guilty pleas. See Matthew R. Durose & Patrick A. Langan, Felony

Sentences in State Courts, 2002, U.S. Dep’t of Justice, Bureau of Justice Statistics, Bull., No.

206916, at 1 (2004). Studies documenting abbreviated investigations, sentencing disparities, and

incorrect but uncorrected presentence report calculations show that the efficiency gained by our

increasingly plea bargain-based system is compromised by its tremendous risks. See, e.g., Nancy

J. King, Judicial Oversight of Negotiated Sentences in a World of Bargained Punishment, 58 STAN.

L. REV. 293 (2005); see also Nancy J. King and Michael E. O’Neill, Appeal Waivers and the Future

of Sentencing Policy, 55 DUKE L.J. 209 (2005) (detailing how increased use of stipulations,

combined with a lack of review, raises the risk that sentences not in compliance with the law can

proliferate without scrutiny). In Michigan at the time of the 1994 constitutional amendment, the

3

Howard involved collateral review of a federal conviction under 28 U.S.C. § 2255.

No. 03-2609 Simmons v. Kapture Page 8

State Appellate Defender’s Office in Michigan estimated that of the guilty pleas that were heard on

appeal, forty-seven percent were given some degree of relief. Limiting Michigan’s Guilty and Nolo

Contendere Plea Appeals, 73 U. DET. MERCY L. R. at 440-41. The forty-seven percent relief rate

suggests that “a significant number of errors in sentencing are being made at the trial court level and

that an appeal as a matter of right is a check against these mistakes and results in savings to the State

by eliminating unnecessarily long periods of incarceration.” Id. In light of the astonishing number

of cases processed through appeals and the significant risks that this system entails, it is no stretch

to say that appeals have become the new focus-point in accurate determinations of innocence or

guilt. See Teague, 489 U.S. at 313.

The Halbert decision gives significant emphasis to the accuracy and fairness that appointed

counsel would add to first-tier appeals. 125 S. Ct. 2592-93 (“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. . . . Persons in Halbert’s

situation are particularly handicapped as self-representatives. . . . Navigating the appellate process

without a lawyer’s assistance is a perilous endeavor for laypersons.”). The emphasis on fairness and

accuracy in Halbert further suggests that if it is in fact “new,” it would qualify for the watershed

exception because in our present system, appeals are often the only way to ensure accuracy of

convictions. Teague, 489 U.S. at 313.

IV.

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); see id., at 23, (“[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.”). The State cannot adopt procedures that leave an indigent defendant “entirely cut off from

any appeal at all,” by virtue of his indigency, Lane v. Brown, 372 U.S. at 481, or extend to such

indigent defendants merely a “meaningless ritual” while others in better economic circumstances

have a “meaningful appeal.” Douglas v. California, 372 U.S. at 358. Michigan had its own

protection against this inequality before 1994, and in 2005 the Halbert decision ensured that no one

would again be left out. Yet for a small group of people arbitrarily caught between Michigan’s own

protections and the protection offered by Halbert, the “meaningless ritual” of indigent appeals

continues to be a harsh and unjust reality thanks to the adopted majority’s opinion. Therefore, I

respectfully dissent.