Halbert v. Michigan

(Slip Opinion) OCTOBER TERM, 2004 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HALBERT v. MICHIGAN

CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN

No. 03–10198. Argued April 25, 2005—Decided June 23, 2005

In Douglas v. California, 372 U. S. 353, this Court held that, in criminal

proceedings, a State must provide counsel for an indigent defendant

in a first appeal as of right. Two considerations were key: (1) An ap-

peal “of right” yields an adjudication on the “merits,” id., at 357, and

(2) first-tier review differs from subsequent appellate stages “at

which the claims have once been presented by a lawyer and passed

upon by an appellate court,” id., at 356. Later, in Ross v. Moffitt, 417

U. S. 600, the Court held that a State need not appoint counsel to aid

a poor person seeking to pursue a second-tier discretionary appeal to

the State’s highest court, or, thereafter, certiorari review in this

Court. Id., at 610–612, 615–618. The Douglas rationale does not ex-

tend to second-tier discretionary review, the Court explained, be-

cause, at that stage, error correction is not the reviewing court’s

prime function. Id., at 615. Principal criteria for state high court re-

view, Ross noted, include whether the issues presented are of signifi-

cant public interest, whether the cause involves legal principles of

major significance to the State’s jurisprudence, and whether the deci-

sion below is in probable conflict with the high court’s precedent.

Ibid. Further, a defendant who has received counsel’s aid in a first-

tier appeal as of right would be armed with a transcript or other re-

cord of trial proceedings, a brief in the appeals court setting forth his

claims, and, often, that court’s opinion disposing of the case. Ibid.

Michigan has a two-tier appellate system. The State Supreme

Court hears appeals by leave only. The intermediate Court of Ap-

peals adjudicates appeals as of right from criminal convictions, ex-

cept that a defendant convicted on a guilty or nolo contendere plea

who seeks intermediate appellate court review must apply for leave

to appeal. Under Michigan law, most indigent defendants convicted

on a plea must proceed pro se in seeking leave to appeal to the inter-

2 HALBERT v. MICHIGAN

Syllabus

mediate court. In People v. Bulger, the Michigan Supreme Court held

that the Fourteenth Amendment’s Equal Protection and Due Process

Clauses do not secure a right to appointed counsel for plea-convicted

defendants seeking review in the intermediate appellate court for

these reasons: Such review is discretionary; plea proceedings are

shorter, simpler, and more routine than trials; and a defendant en-

tering a plea accedes to the State’s fundamental interest in finality.

Petitioner Halbert pleaded nolo contendere to two counts of crimi-

nal sexual conduct. During Halbert’s plea colloquy, the trial court

advised him of instances in which it “must” or “may” appoint appel-

late counsel, but failed to tell him that it could not appoint counsel in

any other circumstances, including Halbert’s own case. The day after

his sentence was imposed, Halbert moved to withdraw his plea. De-

nying the motion, the trial court stated that Halbert’s proper remedy

was to appeal to the State Court of Appeals. Twice thereafter, Hal-

bert asked the trial court to appoint counsel to help him prepare an

application for leave to appeal to the intermediate court, stating that

his sentence had been misscored, that he needed counsel to preserve

the issue before undertaking an appeal, that he had learning disabili-

ties and was mentally impaired, and that he had been obliged to rely

on fellow inmates in preparing his pro se filings. The court denied

Halbert’s motion, citing Bulger. Halbert then filed a pro se applica-

tion for leave to appeal, asserting sentencing error and ineffective as-

sistance of counsel and seeking, inter alia, remand for appointment of

appellate counsel. The Court of Appeals denied leave “for lack of

merit in the grounds presented.” The Michigan Supreme Court de-

clined review.

Held: The Due Process and Equal Protection Clauses require the ap-

pointment of counsel for defendants, convicted on their pleas, who

seek access to first-tier review in the Michigan Court of Appeals.

Pp. 9–17.

Two aspects of the Michigan Court of Appeals’ process following

plea-based convictions compel the conclusion that Douglas, not Ross,

controls here. First, in ruling on an application for leave to appeal,

that court looks to the merits of the appellant’s claims. Second, indi-

gent defendants pursuing first-tier review in the Court of Appeals are

generally ill equipped to represent themselves. A defendant who

pleads guilty or nolo contendere in a Michigan court, although he re-

linquishes access to an appeal as of right, is entitled to apply for

leave to appeal, and that entitlement is officially conveyed to him. Of

critical importance, the intermediate appellate court, unlike the

Michigan Supreme Court, sits as an error-correction instance. A

court Rule provides that the intermediate court may respond to a

leave application in a number of ways: It may grant or deny the ap-

Cite as: 545 U. S. ____ (2005) 3

Syllabus

plication, 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 lower court. The court’s response to

the leave application by any of these alternatives—including denial of

leave—necessarily entails some evaluation of the merits of the appli-

cant’s claims. Pp. 9–10.

This Court rejects Michigan’s argument that Ross is dispositive

here because review in the intermediate appellate court following a

plea-based conviction is discretionary, given the necessity of filing an

application for leave to appeal. The Ross Court recognized that

leave-granting determinations by a State’s highest court turn on con-

siderations other than a lower court’s commission of error, e.g., the

involvement of a matter of “significant public interest.” 417 U. S., at

615. Michigan’s Supreme Court, like the highest courts of other

States, sits not to correct errors in individual cases, but to decide

matters of larger public import. By contrast, the intermediate court,

as 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.

Pp. 10–11.

Whether formally categorized as the decision of an appeal or the

disposal of a leave application, the intermediate appellate court’s rul-

ing 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 en-

deavor to gain first-tier review. Ross emphasized that a defendant

seeking State Supreme Court review following a first-tier appeal as of

right earlier had the assistance of appellate counsel, who will have

reviewed the trial court record, researched the legal issues, and pre-

pared a brief reflecting that review and research. Ibid. Such a de-

fendant may also be armed with an opinion of the intermediate ap-

pellate court addressing the issues counsel raised. Without such

guides keyed to a court of review, a pro se applicant’s entitlement to

seek leave to appeal to Michigan’s intermediate court may be more

formal than real. Cf. Swenson v. Bosler, 386 U. S. 258 (per curiam).

Persons in Halbert’s situation, many of whom have little education,

learning disabilities, and mental impairments, are particularly

handicapped as self-representatives. See Kowalski v. Tesmer, 543

U. S. ___, ___ (GINSBURG, J., dissenting). Further, appeals by defen-

dants convicted on their pleas may be “no less complex than other

appeals.” Id., at ___. Michigan’s complex procedures for seeking

leave to appeal after sentencing on a plea, moreover, may intimidate

the uncounseled. See id., at ___ – ___. The State does have a legiti-

mate interest in reducing its judiciary’s workload, but providing indi-

4 HALBERT v. MICHIGAN

Syllabus

gents with appellate counsel will yield applications easier to compre-

hend. Michigan’s Court of Appeals would still have recourse to sum-

mary denials of leave applications in cases not warranting further

review. And when a defendant’s case presents no genuinely arguable

issue, appointed counsel may so inform the court. Pp. 11–16.

The Court disagrees with Michigan’s contention that, even if Hal-

bert had a constitutionally guaranteed right to appointed counsel for

first-level appellate review, he waived that right by entering a nolo

contendere plea. At the time he entered his plea, Halbert had no rec-

ognized right to appointed appellate counsel he could elect to forgo.

Moreover, the trial court did not tell Halbert, simply and directly,

that in his case, there would be no access to appointed counsel. Cf.

Iowa v. Tovar, 541 U. S. 77, 81. Pp. 16–17.

Vacated and remanded.

GINSBURG, J., delivered the opinion of the Court, in which STEVENS,

O’CONNOR, KENNEDY, SOUTER, and BREYER, JJ., joined. THOMAS, J.,

filed a dissenting opinion, in which SCALIA, J., joined, and in which

REHNQUIST, C. J., joined as to all but Part III–B–3.

Cite as: 545 U. S. ____ (2005) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 03–10198

_________________

ANTONIO DWAYNE HALBERT, PETITIONER v.

MICHIGAN

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MICHIGAN

[June 23, 2005]

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.” Mich. Const., Art. 1, §20. Thereafter,

“several Michigan state judges began to deny appointed

appellate counsel to indigents” convicted by plea.

Kowalski v. Tesmer, 543 U. S. ___, ___ (2004) (slip op., at

1). Rejecting challenges based on the Equal Protection

and Due Process Clauses of the Fourteenth Amendment to

the Federal Constitution, the Michigan Supreme Court

upheld this practice, and its codification in Mich. Comp.

Laws Ann. §770.3a (West 2000). People v. Harris, 470

Mich. 882, 681 N. W. 2d 653 (2004); People v. Bulger, 462

Mich. 495, 511, 614 N. W. 2d 103, 110 (2000).

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 Michi-

gan Court of Appeals. The state trial court and the Court

of Appeals denied Halbert’s requests for appointed coun-

sel, and the Michigan Supreme Court declined review.

2 HALBERT v. MICHIGAN

Opinion of the Court

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). Michi-

gan urges that appeal to the State Court of Appeals is dis-

cretionary 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, we reach the classification question and

conclude that Halbert’s case is properly ranked with Doug-

las rather than Ross. Accordingly, we hold that the Due

Process and Equal Protection Clauses require the appoint-

ment of counsel for defendants, convicted on their pleas,

who seek access to first-tier review in the Michigan Court of

Appeals.

I

The Federal Constitution imposes on the States no

obligation to provide appellate review of criminal convic-

tions. 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 suscepti-

ble 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 fur-

nish 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

Cite as: 545 U. S. ____ (2005) 3

Opinion of the Court

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 re-

solved 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 appellants based solely on their

inability to pay core costs,” while “[t]he due process con-

cern homes in on the essential fairness of the state-

ordered proceedings.” Ibid.; see also Evitts v. Lucey, 469

U. S. 387, 405 (1985).

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 inde-

pendently 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

4 HALBERT v. MICHIGAN

Opinion of the Court

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 benefited from counsel’s aid in a first-tier

appeal as of right would have, “at the very least, a tran-

script 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 Ap-

peals disposing of his case.” Ibid.

II

A

Michigan has a two-tier appellate system comprising the

State Supreme Court and the intermediate Court of Ap-

peals. The Michigan Supreme Court hears appeals by

leave only. Mich. Comp. Laws Ann. §770.3(6) (West Supp.

2004). Prior to 1994, the Court of Appeals adjudicated

appeals as of right from all criminal convictions. Bulger,

462 Mich., at 503–504, 614 N. W. 2d, at 106–107. To

reduce the workload of the Court of Appeals, a 1994

amendment to the Michigan Constitution changed the

process for appeals following plea-based convictions. Id.,

at 504, 614 N. W. 2d, at 106–107. As amended, the State

Constitution provides: “In every criminal prosecution, the

Cite as: 545 U. S. ____ (2005) 5

Opinion of the Court

accused shall have the right . . . to have an appeal as a

matter of right, except as provided by law an appeal by an

accused who pleads guilty or nolo contendere shall be by

leave of the court.” Mich. Const., Art. 1, §20.

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 Mich. Ct. Rule 7.205

(2005). In response, the Court of Appeals may, among

other things, “grant or deny the application; enter a final

decision; [or] grant other relief.” Rule 7.205(D)(2). If the

court grants leave, “the case proceeds as an appeal of

right.” Rule 7.205(D)(3). The parties agree that the Court

of Appeals, in its orders denying properly filed applica-

tions for leave, uniformly cites “lack of merit in the

grounds presented” as the basis for its decision. See Tr. of

Oral Arg. 21–22, 24, 39.

Under Michigan law, most indigent defendants con-

victed by plea must proceed pro se in seeking leave to

appeal. Mich. Comp. Laws Ann. §770.3a (West 2000)

provides, in relevant part, that a “defendant who pleads

guilty, guilty but mentally ill, or nolo contendere shall not

have appellate counsel appointed for review of the defen-

dant’s conviction or sentence,” except that:

“(2) The trial court shall appoint appellate counsel

for an indigent defendant [if the] prosecuting attorney

seeks leave to appeal[, the] defendant’s sentence ex-

ceeds 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 vari-

able or a prior record variable[, the] defendant ob-

6 HALBERT v. MICHIGAN

Opinion of the Court

jected to the scoring or otherwise preserved the mat-

ter 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 al-

leges should have been scored.” §770.3a(1)–(3).

In People v. Bulger, the Michigan Supreme Court con-

sidered 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 ap-

pointment 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 defen-

dant “accede[s] to the state’s fundamental interest in

finality,” ibid. In People v. Harris, the Michigan Supreme

Court, adhering to Bulger, upheld the constitutionality of

§770.3a. 470 Mich., at 882, 681 N. W. 2d, at 653.

B

Petitioner Halbert pleaded nolo contendere to two counts

of second-degree criminal sexual conduct. App. 23. Dur-

ing 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:

Cite as: 545 U. S. ____ (2005) 7

Opinion of the Court

“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 ap-

peal 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 un-

able 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 ob-

ject to the scoring at the time of the sentencing and

the sentence I impose exceeds the sentencing guide-

lines 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 (al-

teration omitted).1

At Halbert’s sentencing hearing, defense counsel re-

quested that the sentences for the two counts run concur-

rently, but urged no error in the determination of Hal-

——————

1 Michigan provided Halbert with a form titled “Notice of Rights After

Sentencing (After Plea of Guilty/Nolo Contendere) and Request for

Appointment of Attorney.” App. 46–50, 53–57. Resembling the advice

conveyed to Halbert by the trial judge, the form described the circum-

stances in which counsel must or may be appointed, but did not ex-

pressly state that, absent such circumstances, counsel would not be

provided. As revised, Michigan’s notice form now states: “You are not

entitled to have a lawyer appointed at public expense to assist you in

filing an application for leave to appeal . . . .” Advice Concerning Right

To Appeal After Plea of Guilty/Nolo Contendere (rev. June 2004),

available at http://courts.michigan.gov/scao/courtforms/appeals/cc265b.

pdf (all Internet materials as visited June 21, 2005, and available in

Clerk of Court’s case file).

8 HALBERT v. MICHIGAN

Opinion of the Court

bert’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 handwrit-

ten 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 applica-

tion 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 seek-

ing 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 ap-

peal. 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, he was obliged to rely

on the assistance of fellow inmates. Id., at 61. The trial

court denied Halbert’s motion; citing Bulger, the court

stated that Halbert “does not have a constitutional . . .

right to appointment of appellate counsel to pursue a

discretionary appeal.” App. 64.

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 ineffec-

tive assistance of counsel, id., at 68, and sought, inter alia,

remand for appointment of appellate counsel and resen-

tencing, 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 Hal-

bert’s application for leave to appeal to that court. The

Cite as: 545 U. S. ____ (2005) 9

Opinion of the Court

dissenting justices would have provided for the appoint-

ment of counsel, and would have allowed counsel to file a

supplemental leave application prior to the Court of Ap-

peals’ reconsideration of Halbert’s pleas. Id., at 84.

We granted certiorari, 543 U. S. ___ (2005), to consider

whether the denial of appointed counsel to Halbert vio-

lated 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 pro-

vides the controlling instruction. Two aspects of the

Michigan Court of Appeals’ process following plea-based

convictions lead us to that conclusion. First, in determin-

ing how to dispose of an application for leave to appeal,

Michigan’s intermediate appellate court looks to the mer-

its of the claims made in the application. Second, indigent

defendants pursuing first-tier review in the Court of Ap-

peals are generally ill equipped to represent themselves.

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 ap-

peal, and that entitlement is officially conveyed to him.

See supra, at 4–5; Mich. Ct. Rule 6.425(E)(2)(a) (2005)

——————

2 The question at hand, all Members of the Court agree, is whether

this case should be bracketed with Douglas v. California, 372 U. S. 353

(1963), because appointed counsel is sought for initial review before an

intermediate appellate court, or with Ross v. Moffitt, 417 U. S. 600 (1974),

because a plea-convicted defendant must file an application for leave to

appeal. See post, at 4 (THOMAS, J., dissenting) (“Michigan’s system bears

some similarity to the state systems at issue in both Douglas and Ross.”).

10 HALBERT v. MICHIGAN

Opinion of the Court

(“[T]he defendant is entitled to file an application for leave

to appeal.”); see also Advice Concerning Right To Appeal,

¶1, supra, at 7, n. 1 (“You are entitled to file an application

for leave to appeal with the Court of Appeals.”). Of critical

importance, the tribunal to which he addresses his appli-

cation, the Michigan Court of Appeals, unlike the Michi-

gan Supreme Court, sits as an error-correction instance.3

The Court of Appeals may respond to a leave application

in a number of ways. It “may grant or deny the applica-

tion; 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 is being appealed.” Mich. Ct. Rule

7.205(D)(2) (2005). When the court denies leave using the

stock phrase “for lack of merit in the grounds presented,”

its disposition may not be equivalent to a “final decision”

on the merits, i.e., the disposition may simply signal that

the court found the matters asserted unworthy of the

expenditure of further judicial resources. But the court’s

response to the leave application by any of the specified

alternatives—including denial of leave—necessarily en-

tails some evaluation of the merits of the applicant’s

claims.

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

——————

3 Both the majority and the dissent in People v. Bulger, 462 Mich.

495, 614 N. W. 2d 103 (2000), described the State’s intermediate

appellate court’s function as error correction. Compare id., at 516–518,

614 N. W. 2d, at 112–113 (in the majority’s view, the Court of Appeals

could perform its review function, despite the defendant’s lack of

representation, because plea-convicted defendants have ample aid for

preservation of their claims in the trial court and ineffective assistance

of counsel should be readily apparent to the Court of Appeals from the

record), with id., at 543, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting)

(“[T]he function of our Court of Appeals is reviewing the merits and

correcting errors made by the lower courts.”).

Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court

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 4. Michigan’s Supreme Court, too, sits not to

correct errors in individual cases, but to decide matters of

larger public import. See Mich. Ct. Rule 7.302(B)(2)–(3)

(2005) (criteria for granting leave to appeal to the Michi-

gan Supreme Court include whether a case presents an

“issue [of] significant public interest” or “involves legal

principles of major significance to the state’s jurispru-

dence”); Great Lakes Realty Corp. v. Peters, 336 Mich. 325,

328–329, 57 N. W. 2d 901, 903 (1953) (equating denial of

an application for leave to appeal to the Michigan Su-

preme Court with denial of a petition for writ of certiorari

in this Court); see also this Court’s Rule 10 (considerations

guiding decision whether to grant certiorari). By contrast,

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 defen-

dant’s claims, not by the general importance of the ques-

tions presented.

Whether formally categorized as the decision of an

——————

4 The Bulger opinions nowhere describe the discretion exercised by the

Michigan Court of Appeals as so unconstrained that it may “deny leave [to

appeal] for any reason, or for no reason at all.” Post, at 10 (THOMAS, J.,

dissenting). Compare Bulger, 462 Mich., at 511, 614 N. W. 2d, at 110

(appeal to intermediate court is discretionary because a defendant must

“obtai[n] leave”); id., at 506–508, 519, 614 N. W. 2d, at 108, 113, with id.,

at 542–543, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting) (Court of

Appeals may deny leave to appeal where error is not outcome-

determinative).

12 HALBERT v. MICHIGAN

Opinion of the Court

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 pre-

pared 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

Mich. Ct. Rule 6.005(H)(4) (2005) (trial counsel must file

“postconviction motions the lawyer deems appropriate,

including motions . . . to withdraw plea, or for resentenc-

ing”); post, at 11 (THOMAS, J., dissenting).5 But we held in

Swenson v. Bosler, 386 U. S. 258 (1967) (per curiam), that

——————

5 This assumes that trial counsel will recognize, in a postconviction

motion, any issues appropriate for preservation for appellate review. A

lawyer may not, however, perceive his own errors or the need for such a

motion. Defense counsel here, for example, whose performance Halbert

alleged to be ineffective, apparently did not assist Halbert in preparing

and filing his motion to withdraw his plea. See supra, at 8.

Cite as: 545 U. S. ____ (2005) 13

Opinion of the Court

comparable materials prepared by trial counsel are no

substitute for an appellate lawyer’s aid. There, the Missouri

court reviewing an indigent’s post-trial appeal had before it

a transcript plus trial counsel’s “notice of appeal and . . .

motion for new trial which specifically designated the issues

which could be considered on direct appeal.” Id., at 259.

The absence of counsel in these circumstances, Bosler held,

“violated [the defendant’s] Fourteenth Amendment rights,

as defined in Douglas.” Ibid. Adhering to Douglas, we

explained that “[t]he assistance of appellate counsel in

preparing and submitting a brief to the appellate court

which defines the legal principles upon which the claims of

error are based and which designates and interprets the

relevant portions of the [record] may well be of substantial

benefit to the defendant [and] may not be denied . . . solely

because of his indigency.” 386 U. S., at 259. Although

Bosler involved a post-trial rather than post-plea appeal, the

Court recognized that a transcript and motion by trial

counsel are not adequate stand-ins for an appellate lawyer’s

review of the record and legal research. Without guides

keyed to a court of review, a pro se applicant’s entitlement

to seek leave to appeal to Michigan’s intermediate court

may be more formal than real.

Persons in Halbert’s situation are particularly handi-

capped as self-representatives. As recounted earlier this

Term, “[a]pproximately 70% of indigent defendants repre-

sented by appointed counsel plead guilty, and 70% of those

convicted are incarcerated.” Kowalski, 543 U. S., at ___

(slip op., at 5) (GINSBURG, J., dissenting). “[Sixty-eight

percent] of the state prison populatio[n] did not complete

high school, and many lack the most basic literacy skills.”

Id., at ___ (slip op., at 6) (citation omitted). “[S]even out of

ten inmates fall in the lowest two out of five levels of

literacy—marked by an inability to do such basic tasks as

write a brief letter to explain an error on a credit card bill,

use a bus schedule, or state in writing an argument made

14 HALBERT v. MICHIGAN

Opinion of the Court

in a lengthy newspaper article.” Ibid. Many, Halbert

among them, have learning disabilities and mental im-

pairments. See U. S. Dept. of Justice, Bureau of Justice

Statistics, A. Beck & L. Maruschak, Mental Health

Treatment in State Prisons, 2000, pp. 3–4 (July 2001),

http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtsp00.pdf (identi-

fying as mentally ill some 16% of state prisoners and

noting that 10% receive psychotropic medication).

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 consid-

eration on the merits.”); Gideon v. Wainwright, 372 U. S.

335, 345 (1963) (“Even the intelligent and educated lay-

man 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 ___ (slip op., at 10)

(GINSBURG, J., dissenting), and may be “no less complex

than other appeals,” id., at ___ (slip op., at 6) (same). One

who pleads guilty or nolo contendere may still raise on

appeal

“constitutional defects that are irrelevant to his fac-

tual guilt, double jeopardy claims requiring no further

factual record, jurisdictional defects, challenges to the

sufficiency of the evidence at the preliminary exami-

nation, preserved entrapment claims, mental compe-

tency claims, factual basis claims, claims that the

state had no right to proceed in the first place, includ-

ing claims that a defendant was charged under an in-

applicable statute, and claims of ineffective assistance

Cite as: 545 U. S. ____ (2005) 15

Opinion of the Court

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 ___ (slip op., at

6–7) (GINSBURG, J., dissenting). Mich. Ct. Rule 7.205(A)

(2005) requires the applicant to file for leave to appeal

within 21 days after the trial court’s entry of judgment.

“The defendant must submit five copies of the application

‘stating the date and nature of the judgment or order

appealed from; concisely reciting the appellant’s allega-

tions of error and the relief sought; [and] setting forth a

concise argument . . . in support of the appellant’s position

on each issue.’ ” Kowalski, 543 U. S., at ___ (slip op., at 7)

(GINSBURG, J., dissenting) (quoting Rule 7.205(B)(1)).

Michigan does provide “a three-page form application

accompanied by two pages of instructions for defendants

seeking leave to appeal after sentencing on a . . . plea. But

th[e] form is unlikely to provide adequate aid to an indi-

gent and poorly educated defendant.” Ibid. It directs the

defendant to provide information such as “charge code(s),

MCL citation/PACC Code,” state the issues and facts

relevant to the appeal, and “ ‘state the law that supports

your position and explain how the law applies to the facts

of your case.’ ” Ibid. (some internal quotation marks omit-

ted) (quoting Application for Leave To Appeal After Sen-

tencing on Plea of Guilty or Nolo Contendere (rev. Oct.

2003), http://courts.michigan.gov/scao/courtforms/appeals/

cc405.pdf). “This last task would not be onerous for an

applicant familiar with law school examinations, but it is

a tall order for a defendant of marginal literacy.”

Kowalski, 543 U. S., at ___ (slip op., at 7) (GINSBURG, J.,

dissenting).

While the State has a legitimate interest in reducing the

16 HALBERT v. MICHIGAN

Opinion of the Court

workload of its judiciary, providing indigents with appel-

late counsel will yield applications easier to comprehend.6

Michigan’s Court of Appeals would still have recourse to

summary denials of leave applications in cases not war-

ranting further review. And when a defendant’s case

presents no genuinely arguable issue, appointed counsel

may so inform the court. See Anders v. California, 386

U. S. 738, 744 (1967) (“[I]f counsel finds [the] case to be

wholly frivolous, after a conscientious examination of it, he

should so advise the court and request permission to

withdraw,” filing “a brief referring to anything in the

record that might arguably support the appeal.”); Tr. of

Oral Arg. 27 (“[I]n a significant percentage of the

cases . . .[,] after reviewing the case, the appellate counsel

then concludes that there is no merit . . . , at which point

then either a motion to withdraw may be filed or . . . the

Michigan equivalen[t] of an Anders brief.”).

Michigan contends that, even if Halbert had a constitu-

tionally 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 defen-

dants convicted on their pleas, had no recognized right to

appointed appellate counsel he could elect to forgo.7 More-

——————

6 “No one questions,” the Bulger Court stated, “that the appointment of

appellate counsel at state expense would be more efficient and helpful not

only to defendants, but also to the appellate courts.” 462 Mich., at 520,

614 N. W. 2d, at 114.

7 Assuming, as JUSTICE THOMAS suggests, that whether Michigan law

conferred on Halbert a post-plea right to appointed appellate counsel is

irrelevant to whether Halbert waived a federal constitutional right to

such counsel, post, at 16–17, the remainder of the dissent’s argument

slips from my grasp, see post, at 17–18. No conditional waiver—“on[e]

in which a defendant agrees that, if he has . . . a right, he waives it,”

post, at 17—is at issue here. Further, nothing in Halbert’s plea collo-

quy indicates that he waived an “unsettled,” but assumed, right to the

assistance of appointed appellate counsel, post-plea. See post, at 17–18.

Cite as: 545 U. S. ____ (2005) 17

Opinion of the Court

over, as earlier observed, the trial court did not tell Hal-

bert, simply and directly, that in his case, there would be

no access to appointed counsel. See supra, at 6–7; cf. Iowa

v. Tovar, 541 U. S. 77, 81 (2004) (“Waiver of the right to

counsel, as of constitutional rights in the criminal process

generally, must be a ‘knowing, intelligent ac[t] done with

sufficient awareness of the relevant circumstances.’ ”

(quoting Brady v. United States, 397 U. S. 742, 748

(1970))).8

* * *

For the reasons stated, we vacate the judgment of the

Michigan Court of Appeals and remand the case for fur-

ther proceedings not inconsistent with this opinion.

It is so ordered.

——————

8 We are unpersuaded by the suggestion that, because a defendant

may be able to waive his right to appeal entirely, Michigan can conse-

quently exact from him a waiver of the right to government-funded

appellate counsel. See Tr. of Oral Arg. 14. Many legal rights are

“presumptively waivable,” post, at 14 (THOMAS, J., dissenting), and if

Michigan were to require defendants to waive all forms of appeal as a

condition of entering a plea, that condition would operate against

moneyed and impoverished defendants alike. A required waiver of the

right to appointed counsel’s assistance when applying for leave to

appeal to the Michigan Court of Appeals, however, would accomplish

the very result worked by Mich. Comp. Laws Ann. §770.3a (West 2000):

It would leave indigents without access to counsel in that narrow range

of circumstances in which, our decisions hold, the State must affirma-

tively ensure that poor defendants receive the legal assistance neces-

sary to provide meaningful access to the judicial system. See Douglas,

372 U. S., at 357–358; M. L. B., 519 U. S., at 110–113; cf. Griffin v.

Illinois, 351 U. S. 12, 23 (1956) (Frankfurter, J., concurring in judgment)

(ordinarily, “a State need not equalize economic conditions” between

criminal defendants of lesser and greater wealth).

Cite as: 545 U. S. ____ (2005) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 03–10198

_________________

ANTONIO DWAYNE HALBERT, PETITIONER v.

MICHIGAN

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MICHIGAN

[June 23, 2005]

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 young girl. Michigan law did not provide Hal-

bert—as a defendant convicted by a plea of guilty or no

contest—an appointed attorney to help him prepare an

application for leave to appeal to the Michigan Court of

Appeals. The Court holds Michigan’s law unconstitutional

as applied to Halbert. It fails, however, to ground its

analysis in any particular provision of the Constitution or

in this Court’s precedents. It also ignores that, even if

there is a right to counsel in the circumstances at issue,

the right is waivable and was validly waived here. I re-

spectfully dissent.

I

To understand why the Court’s holding is an unwar-

ranted extension of our precedents, it is necessary first to

understand the limits that Michigan places on the provi-

sion 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,

2 HALBERT v. MICHIGAN

THOMAS, J., dissenting

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, Michi-

gan 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.” Mich. Const.,

Art. 1, §20; Bulger, supra, at 504, 614 N. W. 2d, at 107.

This constitutional amendment created a two-track sys-

tem for Michigan defendants: The Michigan Court of

Appeals must hear the appeals of those who dispute their

guilt, while it may elect to hear the appeals of those who

concede or do not contest their guilt of the substantive

crime.

In 1999, the Michigan Legislature enacted the statute at

issue here. It provides that, in general, a “defendant who

pleads guilty, guilty but mentally ill, or nolo contendere

shall not have appellate counsel appointed for review of

the defendant’s conviction or sentence.” Mich. Comp.

Laws Ann. §770.3a(1) (West 2000). Defendants who plead

guilty or no contest do not, however, invariably lose the

right to counsel on appeal; the statute contains exceptions

to the general rule. The trial court must appoint appellate

counsel for plea-convicted defendants if the State seeks

leave to appeal, the defendant’s sentence exceeds the

upper limit of the applicable minimum guidelines range,

or the defendant seeks leave to appeal a conditional plea.

§770.3a(2). Further, the trial court may appoint appellate

counsel for plea-convicted defendants who seek leave to

appeal certain sentencing errors. §770.3a(3). Finally, if

the Court of Appeals grants leave to appeal, “the case

proceeds as an appeal of right,” Mich. Ct. Rule 7.205(D)(3)

(2005), and the plea-convicted defendant is entitled to

Cite as: 545 U. S. ____ (2005) 3

THOMAS, J., dissenting

appointed counsel, Mich. Comp. Laws Ann. §770.3a(2)(c).

Thus, plea-convicted defendants lack appellate counsel

only in certain types of cases, and only then when they are

seeking leave to appeal.

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 Due Process Clause, the Equal Protection Clause, or

some purported confluence of the two. Ante, at 2–3. Nor

does the majority attempt to anchor its holding in the

history of those Clauses. M. L. B. v. S. L. J., 519 U. S. 102,

131, 133, 138 (1996) (THOMAS, J., dissenting). Nor does the

majority even attempt to ground its holding in the entirety

of this Court’s jurisprudence, which does not require paid

appellate assistance for indigent criminal defendants. Id.,

at 131–138. The majority ignores the bulk of that juris-

prudence and leaves those arguments unanswered.

Instead, the majority pins its hopes on a single case:

Douglas v. California, 372 U. S. 353 (1963). Douglas, how-

ever, 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 dis-

crimination 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.

4 HALBERT v. MICHIGAN

THOMAS, J., dissenting

A

In Douglas, California granted an initial appeal as of

right to all convicted criminal defendants. 372 U. S., at

356. However, the California District Court of Appeal

appointed counsel for indigent defendants only after de-

termining whether counsel would be useful to the defen-

dant or the court. Ibid. Thus the California appellate

court was “forced to prejudge the merits” of indigent de-

fendants’ 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 sub-

sidy for indigent defendants whose claims appeared unlikely

to benefit from counsel’s assistance. This Court neverthe-

less held that when States provide a first appeal as of

right, they must supply indigent defendants with counsel.

Ross, supra, at 607. In Ross, however, this Court declined

to extend Douglas’ right to counsel beyond initial appeals

as of right. States need not appoint counsel for indigent

defendants who seek discretionary review in a State’s

highest court or this Court. Ross, supra, at 616–618.

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 understand-

Cite as: 545 U. S. ____ (2005) 5

THOMAS, J., dissenting

ing.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,” Mich. Const.,

Art. 1, §20, is discretionary—as the Michigan Supreme

Court has recognized, Bulger, 462 Mich., at 519, 614

N. W. 2d, at 113; id., at 542–542, 614 N. W. 2d, at 125

(Cavanagh, J., dissenting). Neither Douglas nor any other

decision of this Court warrants extending the right to

counsel to discretionary review, even on a defendant’s

initial appeal.

Just as important, the rationale of Douglas does not

support extending the right to counsel to this particular

form of discretionary review. Admittedly, the precise

rationale for the Griffin/Douglas line of cases has never

been made explicit. Ross, supra, at 608–609. Those cases,

however, have a common theme. States may not impose

financial barriers that preclude indigent defendants from

securing appellate review altogether. Griffin, 351 U. S., at

17–18 (plurality opinion); id., at 22 (Frankfurter, J., con-

curring in judgment); Burns v. Ohio, 360 U. S. 252, 258

(1959); Smith v. Bennett, 365 U. S. 708, 713–714 (1961).

Nor may States create “ ‘unreasoned distinctions’ ” among

defendants, M. L. B., supra, at 111 (quoting Rinaldi v.

Yeager, 384 U. S. 305, 310 (1966)); Douglas, supra, at 356;

——————

1Douglas, 372 U. S., at 357; Ross, 417 U. S., at 608 (“[Douglas] ex-

tended only to initial appeals as of right”); Evitts v. Lucey, 469 U. S. 387,

394 (1985) (Douglas “is limited to the first appeal as of right”); Pennsyl-

vania v. Finley, 481 U. S. 551, 555 (1987) (“[T]he right to appointed

counsel extends to the first appeal of right, and no further”); Coleman v.

Thompson, 501 U. S. 722, 755 (1991) (“[Douglas] establish[es] that an

indigent criminal defendant has a right to appointed counsel in his first

appeal as of right in state court”); see also Wainwright v. Torna, 455 U. S.

586, 587 (1982) (per curiam) (“[Ross] held that a criminal defendant does

not have a constitutional right to counsel to pursue discretionary state

appeals or applications for review in this Court”).

6 HALBERT v. MICHIGAN

THOMAS, J., dissenting

Griffin, supra, at 22–23 (Frankfurter, J., concurring in

judgment), that “arbitrarily cut off appeal rights for indi-

gents while leaving open avenues of appeals for more afflu-

ent persons,” Ross, 417 U. S., at 607.

Far from being an “arbitrary” or “unreasoned” distinc-

tion, Michigan’s differentiation between defendants con-

victed at trial and defendants convicted by plea is sensible.

First and perhaps foremost, the danger of wrongful convic-

tions 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 indi-

gent 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 depri-

vation 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,

“[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.” 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., 519 U. S., at

Cite as: 545 U. S. ____ (2005) 7

THOMAS, J., dissenting

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 discrimi-

nation” against criminal defendants, indigent or other-

wise. Douglas, 372 U. S., at 356 (internal quotation omit-

ted). 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 pre-

paring their leave applications if, for example, they appeal

from conditional pleas, Mich. Comp. Laws Ann.

§770.3a(2)(d) (2005), or their sentences exceed the applica-

ble guidelines ranges, §770.3a(2)(b). And any plea-

convicted defendant granted leave to appeal is entitled to

appointed counsel. §770.3a(2)(c). Holding Michigan’s

resources constant (since we have no control over the

State’s bar or budget), the majority’s policy choice to redis-

tribute the State’s limited resources only harms those

most likely to have worthwhile claims—to say nothing of

8 HALBERT v. MICHIGAN

THOMAS, J., dissenting

“the cost of enabling courts and prosecutors to respond to

the ‘over-lawyering’ of minor cases.” Alabama v. Shelton,

535 U. S. 654, 681 (2002) (SCALIA, J., dissenting); cf. Rom-

pilla v. Beard, ante, at 8 (KENNEDY, J., dissenting). Then,

too, Michigan is under no constitutional obligation to pro-

vide appeals for plea-convicted defendants. Ante, at 2

(citing McKane v. Durston, 153 U. S. 684 (1894)). Michigan

may decline to provide an appellate process altogether

(since the Court’s ruling increases the cost of having a

system of appellate review). Surely plea-convicted defen-

dants would prefer appeals with limited access to counsel

than no appeals at all.

B

The majority does not attempt to demonstrate that

Michigan’s system is the sort of “unreasoned” discrimina-

tion against indigent defendants Douglas prohibits. In-

stead, the majority says that this case is earmarked by

two considerations that were also key to this Court’s deci-

sion 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 9. 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

guided . . . by the merits of the particular defendant’s

claims.” Ante, at 11. The distinction that Douglas drew,

however, was not between appellate systems that involve

“some evaluation of the merits of the applicant’s claims”

and those that do not, ante, at 10, but instead between

discretionary and mandatory review. Supra, at 4–6. Of

Cite as: 545 U. S. ____ (2005) 9

THOMAS, J., dissenting

course the California intermediate courts in Douglas

evaluated cases on their merits: These courts were hearing

appeals as of right.

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 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 im-

portant 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 10–11, 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

10–11, and n. 4, but it provides no support for its specula-

tion. Unlike the California District Court of Appeal in

Douglas, the Michigan Court of Appeals has discretion in

deciding whether to grant leave applications. See Bulger,

462 Mich., at 519, 614 N. W. 2d, at 113 (describing the

issue as “whether a defendant is entitled under the federal

constitution to appointed counsel in a first discretionary

10 HALBERT v. MICHIGAN

THOMAS, J., dissenting

appeal from a plea-based conviction” (emphasis in origi-

nal)); id., at 542–543, 614 N. W. 2d, at 125 (Cavanagh, J.,

dissenting) (“Nothing in our court rules or statute pre-

cludes the Court of Appeals from denying leave even

though it may believe that the trial court’s decision was

incorrect”). So far as we can tell, the Michigan Court of

Appeals’ decision to grant or deny a leave application is

not constrained by any state constitutional provision,

statute, or court rule. The Michigan Court of Appeals may

deny leave for any reason, or for no reason at all.

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 10–12, or if its deci-

sional 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 “gener-

ally ill equipped to represent themselves.” Ante, at 9.

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] hid-

den,” 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

Carolina Supreme Court. Before that court, a defendant

applying for leave had “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

Cite as: 545 U. S. ____ (2005) 11

THOMAS, J., dissenting

opinion by the Court of Appeals disposing of his case.”

Ross, 417 U. S., at 615. Coupled with whatever the defen-

dant might submit on his own, these materials provided

the State Supreme Court “with an adequate basis for its

decision to grant or deny review.” Ibid.

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 Michi-

gan 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 tran-

script, trial counsel’s framing of the issues in the mo-

tion 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 identify-

ing 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 6; “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 ap-

peal. After all, the Michigan Court of Appeals need know

only enough to decide whether to grant further review.

Should it elect to do so, Michigan law requires the ap-

pointment of counsel to aid in the appeal. Mich. Comp.

12 HALBERT v. MICHIGAN

THOMAS, J., dissenting

Laws Ann. §770.3a(2)(c) (2005).

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 con-

sidered 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 defen-

dant, 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 distinction” 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 (citation 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 14. 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. Su-

pra, at 4–5, and n. 1. The majority does not demonstrate

that pro se defendants have any more difficulty filing leave

applications before the Michigan courts than, say, filing

petitions for certiorari before this Court.

In fact, this Court receives thousands of pro se petitions

Cite as: 545 U. S. ____ (2005) 13

THOMAS, J., dissenting

every year that list “the date and nature of the judgment

or order appealed from,” Mich. Ct. Rule 7.205(B)(1) (2005);

“reci[te] the appellant’s allegations of error and the relief

sought,” ibid.; and “se[t] forth a concise argument . . . in

support of the appellant’s position on each issue,” ibid.

See this Court’s Rule 14 (setting forth analogous require-

ments for petitions for writs of certiorari). Michigan actu-

ally provides a three-page form application accompanied

by two pages of instructions for defendants seeking leave

to appeal after sentencing on a plea. It counsels defen-

dants to “state the issues and facts relevant to the appeal,”

and “state the law that supports your position and explain

how the law applies to the facts of your case.” Ante, at 15

(internal quotation marks omitted). The majority gives no

clue as to how Michigan could make its procedures for

seeking leave to appeal less intimidating to the uncoun-

seled. Ibid. Regardless, Michigan’s procedures are more

than sufficient to enable discretionary review.

The majority then attempts to soften the blow by saying

that it is doing the State a favor, because “providing indi-

gents with appellate counsel will yield applications easier

to comprehend.” Ante, at 15–16. Even assuming the

majority’s paternalism is accurate, there is no evidence

that the Michigan courts currently have difficulty adjudi-

cating leave applications. At the least, the majority leaves

unexplained why the Michigan courts have greater diffi-

culty than do state and federal courts considering discre-

tionary 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 the policy choice made by

Michigan voters, it is perfectly constitutional.

14 HALBERT v. MICHIGAN

THOMAS, J., dissenting

III

Even assuming that there is a right to appointed appel-

late 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, Michi-

gan’s statutory prohibition on appointed appellate counsel

does not prevent defendants from waiving any constitu-

tional right to such counsel. And, in this case, Halbert’s

waiver was knowing and intelligent.

A

Legal rights, even constitutional ones, are presump-

tively 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 funda-

mental 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, brackets, and citation omitted). The

right to appointed counsel on discretionary appeal from a

guilty plea, however, is not one of them. Even assuming

that the assistance of appellate counsel enhances the

Cite as: 545 U. S. ____ (2005) 15

THOMAS, J., dissenting

reliability of the factfinding process by correcting errors in

that process, it cannot possibly be so fundamental to the

process that its absence “irreparably discredit[s]” the

federal courts, particularly since the Constitution guaran-

tees no right to an appeal at all, e.g., M. L. B., 519 U. S., at

110, 120. Furthermore, as I have explained, the record of

a plea proceeding is fully adequate to enable discretionary

review and, in turn, to permit the correction of errors in

the factfinding process when necessary. Supra, at 11

(explaining that a plea-convicted defendant does not face a

record unreviewed by counsel, and does not lack any rea-

soned treatment of his claims). And, finally, even if the

reliability of the appellate process rather than the trial

process is the relevant consideration here, the assistance

of appellate counsel is not so fundamental to the appellate

process that its absence deprives that process of meaning.

Supra, at 6, 11–13. Cf. Hill, supra, at 116–117 (a consti-

tutional protection may be waived even if it benefits soci-

ety as well as criminal defendants).

Petitioner emphasizes the difficulty of the choice to

which Michigan’s statute puts criminal defendants: pro-

ceed 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, su-

pra, at 210; Brady v. United States, 397 U. S. 742, 750

(1970). Michigan’s waiver requires a choice no more de-

manding 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 right can be waived, Halbert did not knowingly

16 HALBERT v. MICHIGAN

THOMAS, J., dissenting

and intelligently waive it here. The Court is wrong in

each respect.

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 appel-

late counsel he could elect to forgo.” Ante, at 16. This

assertion apparently refers to the Michigan statute, Mich.

Comp. Laws Ann. §770.3a (West 2000). At the time of

Halbert’s plea, the statute provided that, if a defendant

was convicted by plea, he generally could not receive

appointed appellate counsel. The majority’s reasoning is

flawed for at least three reasons.

First, the statement that “Halbert, in common with

other defendants convicted on their pleas, had no recog-

nized right to appointed appellate counsel,” ante, at 16, is

either incorrect or irrelevant. If (as we must) we view 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. Mich. Ct. Rule 6.425(F)(1)(b)

(Lexis 2001) (“In a case involving a conviction following a

trial, if the defendant is indigent, the court must enter an

order appointing a lawyer if the request is filed within 42

days after sentencing or within the time for filing an

appeal of right”). Michigan law thus gave Halbert, before

entering a plea, the choice either to proceed to trial and

guarantee himself appointed appellate counsel, or to plead

guilty or no contest and forgo appointed appellate counsel

in most circumstances.

Alternately, by stating that “Halbert, in common with

other defendants convicted on their pleas, had no recog-

nized right to appointed appellate counsel,” ante, at 16,

Cite as: 545 U. S. ____ (2005) 17

THOMAS, J., dissenting

the majority might mean that Michigan law afforded

Halbert no right to appointed appellate counsel following a

plea-based conviction. If so, the statement is true but

irrelevant. Of course Michigan law did not afford Halbert

a right to appointed counsel once he pleaded no contest to

the charged crimes. But the question is whether, by

pleading no contest with knowledge of the condition (no

paid counsel on appeal), Halbert accepted the condition

and thereby waived his right to paid counsel on appeal. In

other words, the question is whether Halbert had no right

to counsel following his plea, because he had elected to

forgo the right by pleading.

Second, even if the majority were correct about Michi-

gan law, that is beside the point. At issue here is whether

Halbert waived any federal constitutional right to ap-

pointed 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 Hal-

bert 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, ante, at 16. 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

18 HALBERT v. MICHIGAN

THOMAS, J., dissenting

something more than “no[t] recognized,” and hence waiv-

able, ante, at 16, 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 wholly unrecognized. In fact, the exis-

tence of such a right was unsettled when Halbert entered

his plea. By that date, November 7, 2001, the Michigan

Supreme Court had issued Bulger, 462 Mich. 495, 614

N. W. 2d 103, sustaining over a vigorous dissent the prac-

tice of denying the appointment of appellate counsel on

application for leave to appeal a plea-based conviction; and

a Federal District Court had enjoined Michigan state

judges from denying the appointment of appellate counsel

to indigents pursuant to the state statute, on the ground

that the statute was unconstitutional, Tesmer v. Kowalski,

114 F. Supp. 2d 622, 625–629 (ED Mich. 2000). The ma-

jority appears to focus on the fact that Michigan law did

not afford defendants this right, but, again, state law is

irrelevant to whether they possessed a federal constitu-

tional right. The existence of that right was unsettled

at the time of Halbert’s plea; hence, on what I take to

be the majority’s own terms, the right should have been

waivable.2

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 assis-

——————

2 Moreover, the majority’s failure to make clear which sources of law are

to be considered in deciding whether a right is “no[t] recognized,” ante, at

16, and hence nonwaivable, is bound to wreak havoc. For instance,

suppose that a defendant waived the right to appeal his sentence after the

regional Court of Appeals had held that the principle of Blakely v. Wash-

ington, 542 U. S. 296 (2004), did not apply to the United States Sentenc-

ing Guidelines, but before this Court held the contrary in United States v.

Booker, 543 U. S. ___ (2005). The defendant could claim that, in his

circuit, the Sixth Amendment right against the application of the Guide-

lines was “no[t] recognized,” and hence that the right was nonwaivable.

Cite as: 545 U. S. ____ (2005) 19

THOMAS, J., dissenting

tance of appointed appellate counsel, post-plea.” Ante, at

16, 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.

2

The majority compounds its error by expressing doubt in

dictum that the right to appointed appellate counsel can

be waived. Ante, at 17, 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 Doug-

las, 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 17, 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 differ-

entiates between defendants convicted at trial and defen-

dants convicted by plea. Supra, at 6–7. 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 defi-

20 HALBERT v. MICHIGAN

THOMAS, J., dissenting

ciency in the plea colloquy was harmless. See 28 U. S. C.

§2111; cf. Fed. Rule Crim. Proc. 11(h). First, Halbert

understood he was waiving any appeal as of right: 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.” App. 22.

Second, the court explained the statutory exceptions gov-

erning when counsel must or might be appointed, and

Halbert again indicated that he understood those condi-

tions. Ante, at 7 (quoting colloquy). In context, the court’s

enumeration of the limited conditions in which counsel

might be appointed informed Halbert that counsel would

not be appointed in other circumstances. Third, at the end

of the colloquy, the court asked counsel, “Any other prom-

ises or considerations I should be made aware of?” App.

24, and “Do counsel believe I’ve complied with the court

rule regarding no contest pleas?” id., at 25, both of which

questions the prosecutor and defense attorney answered in

the affirmative. Cf. Bradshaw v. Stumpf, ante, at 7

(“Where a defendant is represented by competent counsel,

the court usually may rely on that counsel’s assurance

that the defendant has been properly informed of the

nature and elements of the charge to which he is pleading

guilty”). Fourth, the court “f[ound] the plea understand-

ingly made, voluntary and accurate.” App. 25. There can

be no serious claim that Halbert would have changed his

plea had the court provided further information.

* * *

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.