Amicus Curiae Brief — Halbert v. Michigan

No. 03-10198

Ee

IN THE

Supreme Court of the United Ptates . com |

“NED

FEB 2 2 205

ANTONIO DWAYNE HALBERT,

Petitioner,

MICHIGAN,

Respondent.

On Writ OF CERTIORARI TO THE MICHIGAN CourRT OF APPEALS

BRIEF OF AMICI CURIAE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND NATIONAL

ASSOCIATION OF FEDERAL DEFENDERS IN SUPPORT

OF PETITIONER

Mati N. Brink

INDIGENT DEFENSE COUNSEL

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1150 18th Street, NW, Suite 950

Washington, DC 20036

(202) 872-8600

Counsel for National Association

of Criminal Defense Lawyers

Paut M. RASHKIND

NATIONAL ASSOCIATION OF

FEDERAL DEFENDERS

150 West Flagler Street

Suite 1500

Miami, FL 33130

(305) 536-6900

Counsel for National Association

of Federal Defenders

* Counsel of Record

Craic A. STEWART

ARNOLD & PORTER LLP

399 Park Avenue

New York, NY 10022

(212) 715-1000

ANTHONY J. FRANZE*

JosePpH M. MEADows

ARNOLD & PORTER LLP

555 Twelfth Street, NW

Washington, DC 20004

(202) 942-5000

SHEILA B. SCHEUERMAN

TEMPLE UNIVERSITY SCHOOL oF Law

1719 N. Broad Street

Philadelphia, PA 19122

(215) 204-7103

Counsel for National Association

of Criminal Defense Lawyers

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

INTEREST OF AMICI CURIAE ...............

SUMMARY OF ARGUMENT .................

|, EEO TO err Sy pare ae

Michigan’s Deprivation of Counsel to Indigent

Appellants Violates Constitutional Principles

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I.

A.

Michigan’s Appellate “Application”

Process Is a “Critical Stage” Requiring

Counsel Under Gideon .............

Michigan’s Scheme Unconstitutionally

Abrogates a Traditional, Firmly Rooted

Practice of Providing Indigents Counsel

in Their First Appeal on the Merits

Indigent Defendants Lack the Education and

Literacy Skills to Represent Themselves

Meaningfully on First Appeal............

A.

C.

Profile of an Indigent Appellant: An

Incarcerated High School Dropout

Portrait of an Appeal Following a Guilty

Plea: Complicated Errors and Procedural

The “Protections” Provided Under

Michigan’s Scheme Are Unrealistic and

No Substitute for Counsel ...........

COINCLATIEN oc civeccsavencec ta teepeciee

ii

TABLE OF CITED AUTHORITIES

Cases:

Adams v. Illinois,

i aie Reise ea Wek be

Argersinger v. Hamlin,

PEE Sov ccucveuineodcensevacs

Arsenault v. Massachusetts,

eee eit aus od bids be ate

Baldwin v. Reese,

ge os ee awns koe

Beard v. Banks,

Bae POE onc ccccccctccesecceces

Bell v. Cone,

ERE ERIE eh Deen

Blakely v. Washington,

Pe Gis MED: och chonncducsdevesions

Brecht v. Abrahamson,

ee IS 6 cts ddd ocutcusacsubere

Bundy v. Wilson,

See Oe BAP UUR GA: COTE s ceccnccesoconcee

Coleman v. Alabama,

Pr es EE bo ob buen ads ond ceseuweecad

Page

iii

Cited Authorities

Page

Cooper v. Oklahoma,

SEG DEE Scaccveususdesac tenses 3, 11-12

Daegele v. Kansas,

ie vce. coskdbeckhoeaseddeeaes 12

Douglas v. California,

DP CE cibck cdncdéeccesceseusent passim

Evitts v. Lucey,

SL CUED o chocddabactdecéebasnee passim

Gardner v. Florida,

SR EEOUED ccccccicesvecdeveauumede 2, 5-6

Gideon v. Wainwright,

ED ddecdcacsadedocbacocanrd passim

Glasser v. United States,

Ee PEED Cevcadecanessadsedcakeer 27

Hamilton v. Alabama,

DE: SGD cnc ciabapesodseadoetenes 5,7

Howell v. Mississippi,

SU REED oo ccccccenccsvsdeteabs 25

Iowa v. Tovar,

ees GPE 6 adc cde deneeeaccenas 5,9

Johnson v. Avery,

RT pore y ttre ry 28-29

iv

Cited Authorities

Page

Johnson v. Zerbst,

Be es ED 600 oh cdcccdccucdsvactus 14

Kowalski v. Tesmer,

Bee ee ED Géccccoascdcevdakaues 15-16, 29

Martinez v. Court of Appeal of Cal.,

STD, CP bbbentuctiaseecibandseds 8

Mata v. Egeler,

383 F. Supp. 1091 (E.D. Mich. 1974) .......... 12-13

Medina v. California,

See a ee GD 00 Wecddencccbadenecenel 11-12

Mempa v. Rhay,

Se a EDD ‘duc cdeccdnstenboeie unas 2, 5-7

O'Sullivan v. Boerckel,

Se Os SEED acrectdudvoeucedeceeenees 23

Penson v. Ohio,

Se PED ca cnanenvédodbacennuwer 8-10, 29

People v. Babcock,

666 N.W.2d 231 (Mich. 2003) ................ 21-22

People v. Baker,

327 N.W.2d 403 (Mich. Ct. App. 1983) ....... 19

People v. Bulger,

614 N.W.2d 103 (Mich. 2000) ............ 19, 22, 28

Vv

Cited Authorities

Page

People v. Claypool,

684 N.W.2d 278 (Mich. 2004) ............... a:

People v. Ginther,

212 N.W.2d 922 (Mich. 1973) ............ 18, 25-27

People v. Johnson,

373 N.W.2d 263 (Mich. Ct. App. 1985) ....... 25

People v. Knolton, No. 237796,

2003 WL 1343001

(Mich. Ct. App. Mar. 11, 2003) ............... 19-20

People v. Lawson,

335 N.W.2d 43 (Mich. Ct. App. 1983) ........ 26

People v. Mariji,

447 N.W.2d 835 (Mich. Ct. App. 1989) ....... 26

People v. Miller, No. 221852,

2001 WL 718585

(Mich. Ct. App. June 26, 2001) .............. 27

People v. Mitchell,

560 N.W.2d 600 (Mich. 1997) ............... 26

People v. Nixten,

454 N.W.2d 160 (Mich. Ct. App. 1990) ....... 19

People v. Plaza,

617 N.W.2d 687 (Mich. 2000) .............. 7, 20, 23

vi

Cited Authorities

Page

People v. Stauffer,

640 N.W.2d 869 (Mich. 2003) ............... 22

Powell v. Alabama,

ee Se PEE -o'60 cwacebccucuctstdeuses 13

Roe v. Flores-Ortega,

Se EE Geucddusicusucniebeonwe 10

Ross v. Moffitt,

Se ED cc icvechaenvonbeseaucne 4, 6, 13

Santobello v. New York,

TED 6s bconcbcdddharendceumes 9

Smith v. Crouse,

Pe es IIE od ddnyedvccdédcncdsoanae 12

Smith v. Robbins,

SP CE EE 0s 6 kdudbdordienbonduueat 11

Swenson v. Bosler,

SP EE vivctéccuncdnndcbuatokee 28

Tollett v. Henderson, ;

See Ce EEE: cGeivec usar cade euueiees 20

United States v. Ash,

i CE oc cn cedcsccueasunuen 2, 5, 8, 10

United States v. Booker,

Se i Gs CE oeid Uidinn c'ncdacdeacuewds 18, 22

vii

Cited Authorities

Page

United States v. Gonczy,

357 F.3d 50 (ist Cir. 2004) ............eee0e- 19

United States v. Poe,

462 F.2d 195 (Sth Cir. 1972) ............545- 9

United States v. Wade,

FD Ws DEW CHUN so hav és getvccescbes seven 5, 9-10

Williams v. United State. ,

GON TA. GORGE TED 6 vcd isciccacviicésivaes 12

Statutes and Rules:

Mich. Comp. L. (MCL) § 600.321(1)(a) ......... 24

DS FURIE cc cavescccsvcnweeunecedusedatun 20-21

TO TTA vavtedscasquvanthesécendeeaned passim

oe kei k ess POOPerrrr ee terre eee 21

Dich. Co, BR GOBCH SES osc ccccccciscccnctps 24

REE Ao 6 cjieds cdcopenccnscd dale teeeeeees 19

ee RM iss dy vccs cadeténnensndadeeenee 25

Re IED Sino sb cvenccccencsscutuaeetes 19-20, 24

PM TOE pdicesceccovinntaddnssdusconsuees passim

DEC FPO) cic cece dytadbcactsnscuswren 26

DETR TBARS ccc cccvvicccdoness steve éewebeh 24

vili

Cited Authorities

Page

Studies, Articles, and Other Materials:

Allen J. Beck & Laura M. Maruschak, U.S. Dep’t of

Justice, Mental Health Treatment in State Prisons,

2000 (July 2001), available at http://www.ojp.

usdoj.gov/bjs/pub/pdf/mhtsp00.pdf. .......... 16

Simran Bindra & Pedram Ben-Cohen, Public Civil

Defenders: A Right To Counsel for Indigent Civil

Defendants, 10 Geo. J. on Poverty L. & Pol’y 1

GD nd ce cet Bias ciciecssscdanvecsvanes 29

Bureait of Justice Statistics, U.S. Dep’t of Justice,

Additional Corrections Facts at a Glance, at http/

/www.ojp.usdoj.gov/bjs/gcorpop.htm (last revised

Sel Gas SE 0 ob caus accnessevowensecedtas 15

Robert K. Calhoun, Waiver of the Right to Appeal,

23 Hastings Const. L.Q. 127 (1995) .......... 17

Katja Cerovsek & Kathleen Kerr, Opening the Doors

To Justice: Overcoming the Problem of Inadequate

Representation for the Indigent, 17 Geo. J. Legal

Ge GE cccbvindbdies ns ccdnetcheeees 29-30

Sheila Robertson Deming, Michigan’s Sentencing

Guidelines, 79 Mich. Bar. J. Online 6 (2000),

available at http://www.michbar.org/journal/

article.cfm?articleID=92&volumeID=8&

SPUN 0h 4 bb cb4ssnncocedectbawas 21

Guilty Pleas,

Fe Gs Ba ee CD “ecb cbcnduevceSinnsec 19

ix

Cited Authorities

Page

Robert J. Martin & Walter Kowalski, “A Matter of

Simple Justice”: Enactment of New Jersey's

Municipal Public Defender Act, 51 Rutgers L. Rev.

Ge CHOOD 5 0:0. 06.0s00bes peKtearertwivs dean 30

Mara Matuszak, Note, Limiting Michigan's Guilty and

Nolo Contendere Plea Appeals, 73 U. Det. Mercy

Re Be PO CPE: codndeieedis tévsevede dans 17-18

Michigan Dep’t of Corrections, 2002 Annual Report,

available at http://www.state.mi.us/mdoc/jobs/

pdfs/2002AnnualReport2.pdf (last visited Feb. 16,

WUD hicks iene KakedesncsCincccienmre 15

Michigan Dep’t of Corrections, 2002 Statistical

Report, available at www.michigan.gov/documents/

2001Stat_79881_ 7.pdf (last visited Feb. 16, 2005)

bccny ee nna bis cdebesusentteeseuneecesuae 15

Michigan Dep’t of Corrections, Prisoner Mental

Health Servs., available at http://ww w.michigan.

gov/corrections/0,1607,7-119-9741 9744—

,00.html (last visited Feb. 17, 2005) .......... 17

Michigan Form Application for Appeal, avcilable at

http://www.michigan.gov/scao/courttorms/appeals/

cc405.pdf (last visited Feb. 16, 2005) ........ .. 18, 24

Michigan Sentencing Guidelines Manual (2005),

available at http://courts.michigan.gov/mji/resources/

sentencing-guidelines/sg.htm ................ 21

x

Cited Authorities

Page

Michigan Supreme Court 2003 Annual Report, Circuit

Court Statistical Supplement, available at http://

www.courts.michigan.gov/scao/resources/

publications/statistics/2003/circuitcaseload

report2003.pdf (last visited Feb. 16, 2005) ..... 14

National Center for State Courts, Understanding

Reversible Error in Criminal Appeals (1989) ... 18

Kevin R. Reitz, Sentencing Guideline Systems and

Sentence Appeals: A Comparison of Federal and

State Experiences, 91 Nw. U. L. Rev. 1441 (1997)

ebedhheGee bets CON ecbeeddwe thas euutuaes 18

U.S. Dep’t of Educ., Literacy Behind Prison Walls

(1994), available at http://nces.ed.gov/pubs94/

See A ican bicoueed 15-16, 21, 25

Caroline Wolf Harlow, U.S. Dep’t of Justice, Defense

Counsel in Criminal Cases (2000), available at

http://www.ojp.usdoj.gov/bjs/pub/pdf/dcce.pdf . . . 14

Caroline Wolf Harlow, U.S. Dep’t of Justice,

Education and Correctional Populations (2003),

available at http://www.ojp.usdoj.gov/bjs/pub/pdf/

CE derdsnuuiercdcccbunssdocntaetsocel 15

l

INTEREST OF AMICI CURIAE '

The National Association of Criminal Defense Lawyers

(NACDL) is a nonprofit corporation and the only national bar

association working in the interest of public and private criminal

defense attomeys and their clients. Founded in 1958, NACDL’s

mission is to ensure justice and due process for the accused; to

foster the integrity, independence, and expertise of the criminal

defense profession; and to promote the proper and fair

administration of justice. NACDL has more than 12,000 members

nationwide—joined by 90 state, local, and international affiliate

organizations with another 35,000 members—including private

criminal defense lawyers, public defenders, and law professors

committed to preserving faimess within America’s criminal justice

system. The American Bar Association recognizes NACDL as an

affiliate organization and awards it full representation in the ABA’s

House of Delegates.

The National Association of Federal Defenders (NAFD) was

formed in 1995 to enhance the representation provided under the

Criminal Justice Act, 18 U.S.C. § 3006A, and the Sixth Amendment

to the United States Constitution. NAFD is a nationwide, non-

and support staff of Federal Defender offices. One of the guiding

principles of NAFD is to promote the fair administration of justice

by appearing as amicus curiae im litigation relating to ciminal law

In this case, NACDL and NAFD are concerned that Michigan

is denying appellate counsel to indigent defendants who plead guilty

or nolo contendere, requiring these defendants—most of whom

are functionally illiterate—to identify and brief complicated

sentencing and other errors in their first and only appeal on the

merits.

1. No counsel for a party authored this brief in whole or in part.

No person or entity other than NACDL, NAFD, and their counsel made

a monetary contribution to the preparation or submission of this brief.

Both Petitioner and Respondent have consented to the filing of this brief,

and pursuant to Rule 37.3(a), NACDL and NAFD have filed the letters

of consent with the Clerk of the Court.

2

SUMMARY OF ARGUMENT

I. It is remarkable that over forty years after this Court’s

landmark decisions in Gideon v. Wainwright and Douglas v.

California, a State would seek to deprive counsel to the poor at

a critical stage in the criminal justice process. As Petitioner aptly

has demonstrated, Michigan’s system falls squarely under

Douglas, and the deprivation of counsel to indigent defendants

under Michigan Compiled Laws (MCL) § 770.3a violates both

due process and equal protection. But this case transcends the

constitutional principles underlying Douglas.

Michigan’s appellate “Application” process for indigents

who plead guilty constitutes a “critical stage” of criminal

proceedings covered by the Sixth Amendment’s right to counsel

under Gideon. Because of uniform adherence to Douglas, this

Court never has needed to address whether a State’s post-

conviction proceedings for reviewing errors, like Michigan’s,

constitute a “critical stage.” But the Michigan Application for

leave to appeal process is every bit as critical as other stages.

As Petitioner’s case illustrates, the Application is the first and

only stage to raise and preserve errors concerning the

effectiveness of trial counsel, the government’s conduct during

the plea process, and the propriety of the sentence, serving as a

needed check to ensure pre- and post-conviction constitutional

rights are fulfilled. Issues not raised in the Application are

waived. Mich. Ct. R. (MCR) 7.205(D)(4). In other post-

conviction proceedings where similar interests are at stake, such

as sentencing, this Court has held that counsel is required under

the Sixth Amendment. Mempa v. Rhay, 389 U.S. 128, 134-37

(1967); Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality

opinion). This Court has noted that Gideon’s right to counsel in

critical stages should apply “when new contexts appear

presenting the same dangers that gave birth initially to the right

[to counsel] itself.” United States v. Ash, 413 U.S. 300, 311

(1973). Michigan’s system is exactly that. Accordingly, even if

Michigan was correct that its unprecedented new system for

3

indigents who plead guilty evades the dictates of Douglas (which

it does not), the Michigan system runs afoul of the Sixth

Amendment.

Beyond the Sixth Amendment, Michigan’s scheme departs

from the traditional practice in all states of providing counsel

to indigent defendants on their first, and only, opportunity to

have a lawyer cull the record, analyze the law, and identify

potential errors in the defendants’ convictions and sentences.

The abrogation of that practice itself constitutes an independent

violation of due process. See Cooper v. Oklahoma, 517 U.S.

348, 362 (1996). Since this Court’s March 18, 1963 watershed

decisions in Gideon and Douglas, no jurisdiction other than

Michigan—not one—has denied an indigent defendant the .

assistance of counsel in an initial error-correcting appeal,

regardless of whether the first appeal was by leave or as of right.

MCL § 770.3a thus offends “a principle of justice that is deeply

‘rooted in the traditions and conscience of our people,” and

correspondingly violates due process. Jd. (quotation source

omitted).

II. Michigan defends MCL § 770.3a on the ground that

indigent defendants can adequately protect their own rights on

first appeal because the State provides them transcripts and a

“nontechnical and easily understood” form Application to

appeal. See Opp. Cert. 20. That position ignores both the abilities

of indigent appellants and the real world complexity of guilty

plea appeals.

Indigent defendants who plead guilty are the poorest, least

educated, least literate members of our society. National literacy

studies show that these defendants, most of whom are

incarcerated, lack the skills necessary to write a note disputing

an improper charge on a credit card bill, much less meet the

substantive and procedural requirements of perfecting and

litigating an appeal. Moreover, while involving fewer issues

than appeals after trial, appeals following guilty pleas are equally

notoriously diffici:it Michigan Sentencing Guidelines and are

4

subject to unforgiving procedural requirements under the

Michigan Court Rules.

Reflecting the complexity of the issues—and contrary to

the myth that most appeals following guilty pleas are frivolous—

the success rate of these appeals is relatively high. Indeed, an

examination of a typical indigent appeal in Michigan confirms,

“[t]o prosecute the appeal, a criminal appellant must face an

adversary proceeding that—like a trial—is governed by intricate

rules that to a layperson would be hopelessly forbidding.” Fvitts

v. Lucey, 469 U.S. 387, 396 (1985). No matter how many “user-

friendly” forms Michigan creates or how many unskilled

jailhouse lawyers help indigent defendants like Petitioner

stumble along, there is no substitute for the guiding hand of

counsel.

In short, Michigan’s system under MCL § 770.3a is so

fundamentally flawed—so contrary to the principles underlying

the right to counsel—that unconstitutionality permeates the

entire scheme.

ARGUMENT

I. Michigan’s Deprivation of Counsel to Indigent

Appellants Violates Constitutional Principles

Independent from Those Underlying Douglas

As Petitioner has demonstrated, Michigan’s deprivation of

appellate counsel under MCL § 770.3a violates both due process

and equal protection under the Fourteenth Amendment. Douglas

v. California, 372 U.S. 353 (1963); accord Evitts v. Lucey, 469

U.S. 387 (1985); Ross v. Moffitt, 417 U.S. 600 (1974). Appeals

following guilty pleas’ in Michigan are not truly “discretionary,”

and the Constitution would mandate the appointment of counsel

even if they were. The Court need go no further than Douglas

and its progeny to strike down the Michigan system as

2. MCL § 770.3a applies to defendants who plead guilty, guilty

but mentally ill, or nolo contendere. Jd. § 770.3a(1). For convenience,

this brief will refer only to “guilty pleas,” though our discussion will

apply to all three types of convictions covered by the statute.

5

unconstitutional. But putting Douglas aside, Michigan’s scheme

independently violates the Constitution.

A. Michigan’s Appellate “Application” Process Is a

“Critical Stage” Requiring Counsel Under Gideon

On March 18, 1963, this Court issued both Gideon and

Douglas. Gideon, of course, held that the right to counsel under

the Sixth Amendment is “so fundamental and essential to a fair

trial, and so, to due process of law, that it is made obligatory

upon the States by the Fourteenth Amendment.” Gideon, 372

U.S. at 340 (quotation omitted). For its part, Doug/as—telying

not on the Sixth Amendment, but on due process and equal

protection grounds—held that an indigent defendant must be

provided counsel for a first appeal as of right. Douglas, 372

U.S. at 357-58.

In the four decades since, this Court further defined the

parameters of Gideon and Douglas. Expanding on Gideon, this

Court deemed the Sixth Amendment’s right to counsel so

fundamental that it applies not only at trial, but to “all ‘critical

stages’ of the criminal process.” Jowa v. Tovar, 124 S. Ct. 1379,

1387 (2004). Critical stages include “every stage of a criminal

proceeding where substantial rights of a criminal accused may

be affected.” Mempa v. Rhay, 389 U.S. 128, 134 (1967); accord

Bell v. Cone, 535 U.S. 685, 695-96 (2002) (critical stage

“denote[s] a step of a criminal proceeding, such as arraignment,

that held significant consequences for the accused.”). They are

those stages involving “trial-like confrontations,” such as where

a defendant would need assistance to confront either his

adversary or a State’s intricate procedural system. See United

States v. Ash, 413 U.S. 300, 312 (1973). Accordingly, this

Court has extended the right to counsel to steps in the criminal

sentencing. See Hamilton v. Alabama, 368 U.S. 52, 53-54 (1961)

(arraignment is a critical stage); United States v. Wade, 388 U.S.

218, 236-37 (1967) (post-indictment line-up is a critical stage);

Mempa, 389 U.S. at 137 (sentencing is a critical stage); Gardner

6

v. Florida, 430 U.S. 349, 358 (1977) (sentencing is a critical

stage) (plurality opinion).

Until now, every jurisdiction in the United States has

required the appointment of counsel on first appeal under

Douglas. Thus, this Court never has needed to address whether

a post-sentencing proceeding like Michigan’s appellate

“Application”’ process for plea-based convictions is a “critical

stage” covered by Gideon. Michigan’s system, however, easily

meets the requirements of a critical stage. —

First, Michigan’s Application process for those who plead

guilty is a step “where substantial rights of a criminal accused

may be affected.” Mempa, 389 U.S. at 134. Unlike truly

“discretionary” second-tier appeals or collateral proceedings,‘

Michigan’s appellate Application process is the first and only

procedure aimed at correcting error. It provides a vital check on

the government’s conduct during pleas and presents one of the

few opportunities to prevent other constitutional violations that

typically are identified and raised only post-conviction, such as

errors in sentencing.

3. Michigan has fractured guilty-plea appeals into two steps, the

first being an Application for leave to appeal, see MCR 7.205(B), and if

that is granted, the second being an appeal. MCR 7.205(D)(3).

4. As this Court distinguished in Ross:

We are fortified in this conclusion by our understanding of

the function served by discretionary review in the North

Carolina Supreme Court. The critical issue in that court, as

we perceive it, is not whether there has been “a correct

adjudication of guilt” in every individual case, but rather

whether “the subject matter of the appeal has significant

even though it believes that the decision of the Court of

Ap, 2als was incorrect.

417 U.S. at 615 (citations omitted); accord Brecht v. Abrahamson, 507

U.S. 619, 633 (1993) (“When the process of direct review . . . comes to

an end, a presumption of finality and legality attaches to the conviction

and sentence. The role of federal habeas proceedings, while important

in assuring that constitutional rights are observed, is secondary and

limited. . . .”).

5

Further, the risk of waiving the right to challenge these

violations alone renders Michigan’s procedure a critical stage.

In Mempa, for instance, the Court deemed sentencing a critical

stage because the absence of counsel could result in the waiver

of appellate rights. See id. at 135 (“Even more important in a

case such as this is the fact that certain legal rights may be lost

if not exercised at this stage.”); see also Hamilton, 368 U.S. at

54-55 (arraignment is critical stage because rights may be waived

without counsel). In Michigan, the indigent defendant’s failure

to raise an error in his pro se Application constitutes waiver,

even if the error involves the deprivation of constitutional rights.

Indeed, such risks already have come to fruition under

Michigan’s system. In People v. Plaza, 617 N.W.2d 687 (Mich.

2000), the Michigan Supreme Court summarily denied review

of a case involving the State’s purported failure to provide an

indigent defendant a transcript to assist his pro se appeal. In her

concurrence, Justice Corrigan based the denial on the ground

failed to raise the error in his pro se Application. Jd. at 687

(Corrigan, J., concurring). In her dissent, however, Justice Kelly

cogently recognized that the case illustrated a fundamental flaw

in Michigan’s system:

The concurrence points out that defendant failed to

raise the issue in his application to the Court of

Appeals. Defendant, untrained in law, may have been

unaware of the consequences of failing to raise it.

If so, this case illustrates why indigent defendants

need the assistance of appointed appellate counsel,

even when they have pleaded guilty. There is a

distinct possibility that defendant was wrongly

sentenced in this case. He is being denied a

reasonable hearing because, lacking legal counsel,

he did not follow the procedural requirements of

appellate review.

Id. at 688 (Kelly, J., dissenting). As Plaza demonstrates,

Michigan’s process presents the very real risk that substantial

8

constitutional rights—many of which could not have been

protected by trial counsel—can be lost in the pro se

Application process.

Second, Michigan’s process is a “critical stage” because

it requires a defendant to confront a State’s intricate

procedural system. See Ash, 413 U.S. at 311-12. Michigan’s

procedures for guilty plea appeals are no less formidable than

the procedures for appeals following trial. As discussed in

detail below, an appeal following a guilty plea in Michigan

follows the customary process for any appeal. To seek leave

to appeal, the indigent must timely invoke the appz-llate

process; follow other procedural requirements to perfect the

appeal; read, understand, and analyze the record; identify

legal issues cognizable on appeal; locate, read, and

understand case decisions, statutes, rules, and other

authorities; and support contentions with legal authorities

and specific references to the record. Just because the appeal

follows a guilty plea, “(t]he need for forceful advocacy does

not come to an abrupt halt as the legal proceeding moves

from the trial to the appellate stage. Both stages .. . require

careful advocacy to ensure that rights are not forgone and

that substantial legal and factual arguments are not

inadvertently passed over.” Penson v. Ohio, 488 U.S. 75, 85

(1988).

To be sure, this Court has not yet recognized a

constitutional right to appeal. And in other contexts, the Court

has stated that the right to counsel on appeal is generally

covered by the Fourteenth, as opposed to the Sixth,

Amendment. See Martinez v. Court of Appeal of Cal., 528

U.S. 152, 160 (2000). As a threshold matter, however, under

the critical stage analysis, the right to counsel applies based

upon the significance of the proceeding, not whether the

accused has a right to the proceeding in the first instance.

9

So, for example, an accused has a right to counsel at a

preliminary hearing, even if he has no right to a preliminary

hearing;* during a lineup, even if he has no right to appear in

a lineup? during a guilty or no contest plea proceeding, even

if he has no right to plead guilty or no contest.’

As for the constitutional underpinnings of the doctrine,

because of uniform adherence to Douglas in every state, this

Court never has needed to directly apply the “critical stage”

analysis where appellate rights are involved. Where the

Gideon and Douglas lines of cases have intersected, however,

this Court has recognized that the Sixth Amendment is

implicated post-conviction. Specifically, in Evitts v. Lucey,

this Court determined that the right to effective assistance of

counsel under the Sixth Amendment—traditionally applied

only to “critical stages”—applies to a defendant’s first appeal

of right. 469 U.S. at 396. Later in Penson v. Ohio, this Court

applied the critical stage “presumption of prejudice” standard

for ineffective assistance of counsel to defendants denied

counsel on a first appeal:

5. Coleman v. Alabama, 399 U.S. 1, 8-9 (1970).

6. See Wade, 388 U.S. at 237-38 (1967) (“[T]here can be litt'e

doubt that for Wade the postindictment lineup was a critical stage of

the prosecution at which he was as much entitled to such aid (of

counsel) as at the trial itself.”) (internal quotation marks and

alterations omitted); United States v. Poe, 462 F.2d 195, 198 (Sth

Cir. 1972) (“There is no right to a lineup”).

7. lowa, 124 S. Ct. at 1383 (“The entry of a guilty plea, whether

to a misdemeanor or a felony charge, ranks as a ‘critical stage’ at

which the right to counsel adheres.”) (citations omitted); Santobello

v. New York, 404 U.S. 257, 262 (1971) (“A court may reject a plea in

exercise of sound judicial discretion.”).

10

[T]he presumption that counsel’s assistance is

essential requires us to conclude that a trial is

unfair if the accused is denied counsel at a critical

stage of his trial... . Because the fundamental

importance of the assistance of counsel does not

cease as the prosecutorial process moves from the

trial to the appellate stage, the presumption of

prejudice must extend as well to the denial of

counsel on appeal.

488 U.S. at 88 (citations omitted); see also Roe v. Flores-

Ortega, 528 U.S. 470, 483 (2000) (“The presumption that

counsel’s assistance is essential requires us to conclude that

a trial is unfair if the accused is denied counsel at a critical

stage. The same is true on appeal.”) (citations omitted);

cf. Arsenault v. Massachusetts, 393 U.S. 5, 6 (1968) (per

curiam) (“The right to counsel at the trial, on appeal, and at

the other ‘critical’ stages of the criminal proceedings have

all been made retroactive, since the ‘denial of the right must

almost invariably deny a fair trial.””) (citations omitted).

Regardless, nothing prevents the application of Gideon

and the Sixth Amendment here. This Court repeatedly has

recognized that the “critical stage” doctrine warrants

application “when new contexts appear presenting the same

dangers that gave birth to the right [to counsel] itself.” Ash,

413 U.S. at 311; see also Wade, 388 U.S. at 224-26.

Michigan’s system of denying appointment of counsel in the

first and only proceeding aimed at correcting errors is one of

those new contexts. Thus, even if Michigan’s unprecedented

denial of appellate counsel for indigent defendants who plead

guilty can be said to evade the dictates of Douglas (which it

does not), the deprivation of counsel runs afoul of the

Constitution.

11

B. Michigan’s Scheme Unconstitutionally Abrogates

a Traditional, Firmly Rooted Practice of

Providing Indigents Counsel in Their First

Appeal on the Merits

Citing Smith v. Robbins, 528 U.S. 259 (2000), Michigan

argues that the denial of counsel to those who plead guilty is

permissible because Michigan is free “to experiment with

procedures for handling criminal appeals.” Opp. Cert. 26.

In Smith, the Court recognized that states are free to adopt

different procedures concerning appointed counsel’s ability

to decline to pursue a frivolous appeal so long as the

procedures adequately safeguard a defendant’s right to

counsel. 528 U.S. at 265. The Court, however, distinguished

between procedures that protect the effectiveness of counsel

versus those that deny counsel in the first instance. Jd. at

286. Michigan’s system does the latter, denying counsel

outright.

In any event, even when viewed purely as a procedural

issue, the “procedure” under MCL § 770.3a—which

abrogates a traditional practice employed in every state—

violates due process. In recent years, this Court has

recognized that departures from traditional procedures

independently may violate due process if the change “offends

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.”

Cooper v. Oklahoma, 517 U.S. 348, 367 (1996) (citation

omitted); Medina v. California, 505 U.S. 437, 445 (1992)

(citations omitted). In Cooper, for instance, Oklahoma

adopted a procedure that presumed a criminal defendant to

be competent unless the defendant proved incompetence by

clear and convincing evidence. 517 U.S. at 350. Because of

a longstanding and “near-uniform application” of a

preponderance of the evidence standard by federal and state

courts, this Court determined that Oklahoma’s departure

violated due process. Jd. at 361-62.

12

To determine whether a state’s procedure offends a

deeply rooted fundamental principle of justice, this Court

has compared the practice to those employed at common law,

Medina, 505 U.S. at 145-46, and to contemporary practice,

see Cooper, 517 U.S. at 360 (“Contemporary practice

demonstrates that the vast majority of jurisdictions remain

persuaded that the heightened standard of proof imposed on

the accused in Oklahoma is not necessary to vindicate the

State’s interest. ...”). Here, the relevant starting point is

March 18, 1963, the day this Court decided Gideon and

Douglas. Such decisions are counted among the few

“watershed rules of criminal procedure” ‘at “are implicit in

the concept of ordered liberty” so as to have retroactive effect.

Beard v. Banks, 124 §. Ct. 2504, 2513-14 (2004) (right to

counsel under Gideon retroactive under Teague exception

because it altered “understanding of the bedrock procedural

elements”); accord Adams v. Illinois, 405 U.S. 278, 280-81

(1972) (plurality) (recognizing the retroactive effect of the

right to counsel rules under both Gideon and Douglas).*

Since Douglas was decided, no other jurisdiction—not

one—has deprived an indigent defendant the appointment

of counsel on a first appeal on the merits, even when the

State permits the first appeal only by leave. See Bundy v.

Wilson, 815 F.2d 125, 136-42 (1st Cir. 1987) (describing

appellate systems in all U.S. jurisdictions); Pet. Br. 24-25

(noting that only two states do not allow a first appeal of

right and all require appointment of counsel for the first

appeal). Over thirty years ago, a Michigan federal court

explicitly rejected the notion that a so-called “discretionary”

first appeal permits the deprivation of counsel. Mata v.

8. See also Williams v. United States, 401 U.S. 646, 653 n.6

(1971) (plurality) (same); Smith v. Crouse, 378 U.S. 584, 584 (1964)

(per curiam) (summarily reversing state supreme court judgment that

Douglas rule was not retroactively applicable); Daegele v. Kansas,

375 U.S. 1, 1 (1963) (per curiam) (similar).

13

Egeler, 383 F. Supp. 1091, 1093-94 (E.D. Mich. 1974). Most

notable, in Ross v. Moffitt, this Court held thai due process

did not require appointment of counsel in second-tier, truly

“discretionary” direct appeals based in part on the assumption

that in all first-tier appeals an indigent’s “claims had ‘once

been presented by a lawyer and passed upon by an appellate

court.’”” 417 U.S. at 615.

Courts, scholars, counsel, and defendants likewise

assume that from the initiation of charges through the first

appeal “lawyers in criminal courts are necessities, not

luxuries.” Gideon, 372 U.S. at 344. Accordingly, independent

of the due process and equal protection principles in Douglas,

or the Sixth Amendment protections of Gideon, Mici. .gan’s

scheme violates the Constitution.

II. Indigent Defendants Lack the Education and Literacy

Skills to Represent Themselves Meaningfully on First

Appeal

Michigan defends MCL § 770.3a on the ground that

indigent defendants can adequately protect their rights on

first appeal because the State provides them transcripts and

a “nontechnical 1nd easily understood” form Application to

appeal. See Opp. Cert. 20. Michigan ignores the capabilities

of indigent appellants, downplays the complexity of appeals

following guilty pleas, and minimizes the vital interests at

stake.

A. Profile of an Indigent Appellant: An Incarcerated

High School Dropout Lacking Even Basic

Literacy Skills

This Court long has recognized the inability of laymen

to represent themselves effectively at critical stages in the

criminal justice process, including a defendant’s first appeal

as of right. E.g., Powell v. Alabama, 287 U.S. 45, 68-69

(1932) (“The right to be heard would be, in many cases, of

little avail if it did not comprehend the right to be heard by

14

counsel. Even the intelligent and educated layman has small

and sometimes no skill in the science of law.”); Gideon, 372

U.S. at 344-45 (quoting same); accord Johnson v. Zerbst,

304 U.S. 458, 462-63 (1938) (noting “a realistic recognition

of the obvious truth that the average defendant does not have

the professional legal skill to protect himself”); Argersinger

v. Hamlin, 407 U.S. 25, 32 n.3 (1972) (“That which is simple,

orderly and necessary to the lawyer—to the untrained

layman—may appear intricate, complex, and mysterious.”)

(citation omitted); Evitts, 469 U.S. at 393 (“[T]he services

of a lawyer will for virtually every layman be necessary to

present an appeal in a form suitable for appellate

consideration on the merits.”) (citation omitted). Michigan’s

statute, however, does not target the average layperson. It

denies counsel to indigent defendants who plead guilty. As a

group, these individuals are the poorest, least educated, and

least literate members of our society.

According to Justice Department statistics, about 80%

of state felony defendants use court-appointed lawyers.

See Caroline Wolf Harlow, U.S. Dep’t of Justice, Defense

Counsel in Criminal Cases 1, 5 (2000), available at http://

www.ojp.usdoj.gov/bjs/pub/pdf/dcece.pdf (analyzing data on

felony defendants in state courts in 75 largest counties). The

typical indigent defendant—like Petitioner Halbert—pleads

guilty or nolo contendere and is incarcerated. See id. at 6,

tbls.10-11 (71% of indigent defendants plead guilty and

71.3% of convicted indigent defendants are incarcerated);

accord Michigan Supreme Court 2003 Annual Report, Circuit

Court Statistical Supplement 3, available at http://

www.courts.michigan.gov/scao/resources/publications/

statistics/2003/circuitcaseload report2003.pdf (last visited

Feb. 16, 2005) (52,913 felony criminal cases disposed of by

verdict or by plea in 2003; 49,833 were by guilty plea).

The incarcerated indigent, like the rest of the inmate

population, is more likely to be young, male, and a member

15

of a minority group. See Bureau of Justice Statistics, U.S.

Dep’t of Justice, Additional Corr. Facts at a Glance, at http:/

/www.ojp.usdoj.gov/bjs/gcorpop.htm (last revised May 28,

2004); accord Mich. Dep’t of Corr., 2002 Annual Report 21,

available at http://www.state.mi.us/mdoc/jobs/pdfs/

2002Annual Report2.pdf (last visited Feb. 16, 2005) (average

age of Michigan state male prisoner in 2002 was 35 years

old; 57.7% of prison population were members of minority

groups). Odds are, like 68% of the prison population, he is a

high school dropout or received no high school education at

all. See Caroline Wolf Harlow, U.S. Dep’t of Justice, Educ.

& Corr. Populations | (2003), available at http://

www.0ojp.usdoj.gov/bjs/pub/pdf/ecp.pdf. °

Further, there is an extraordinarily high probability that

he is functionally illiterate. See generally U.S. Dep’t of Educ.,

Literacy Behind Prison Walls (1994), available at http://

nces.ed.gov/pubs94/94102.pdf [hereinafter Literacy

Report];'° accord Kowalski v. Tesmer, 125 S. Ct. 564, 574

9. This report analyzed data showing that 68% of inmates in

state prisons have not completed high school, compared to 18% of

the general population. Educ. & Corr. Populations, supra, at 1. The

report also found that 14.2% of state inmates had an eighth-grade

education or less. Jd. at 2, tbl.1. While comparable data is not

generally available concerning Michigan inmates, available statistics

reflect that most of the participants in Michigan correctional

educational services are enrolled in programs that teach Adult Basic

Education (0 to 8th grade). See Mich. Dep’t of Corr., 2002 Statistical

Report F-9-F-11, available at http://www.michigan.gov/documents/

2002Stat_114829_7.pdf (last visited Feb. 16, 2005). Conversely, not

one inmate enrolled in the prison education program in 2002 was

receiving college level training. /d.

10. The Literacy Report, by the National Center for Education

Statistics, determined that 7 out of 10 inmates are functionally

illiterate. See Literacy Report at xviii, 10, 17. Specifically, relying

on data from the National Literacy Survey, the report evaluated the

(Cont'd)

16

(2004) (Ginsburg, J., dissenting) (discussing Literacy

Report). This means that while the indigent defendant may

have some minimal reading and writing abilities, he cannot

perform a wide range of routine tasks. According to the

leading literacy study, for instance, he likely lacks the ability

to:

* enter information on an application for a social

security card, Literacy Report at 10, 17;

* use a bus schedule, id. at 10, 17;

* write a letter explaining an error on a credit card

bill, id. at 10, 17;

* determine the difference in price between two

tickets, id. at 10, 17; and

* identify information in a bar graph.

Id. at 10, 17.

Beyond education and literacy, the indigent defendant is

more likely to be hindered by mental health problems.

Nationwide studies show that about 16% of all state inmates

are identified as mentally ill and one in ten receives

psychotropic medication. Allen J. Beck & Laura M.

Maruschak, U.S. Dep’t of Justice, Mental Health Treatment

in State Prisons, 2000 3-4 (July 2001), available at http://

www.ojp.usdoj.gov/bjs/pub/pdf/mhtsp00.pdf. According to

(Cont'd)

abilities of the nation’s inmate population in three areas of literacy:

prose, document, and quantitative literacy. /d. at 15-16. Participants

were rated on a scale of | to 5 on their capabilities within each of

these three categories. Jd. at 9 & fig.1. The study showed that

approximately 70% of inmates fell into the two lowest levels (Levels

1 and 2) for each literacy category. /d. at 17. Approximately one-

third of inmates, for instance, scored at only Level | in all categories.

Id. at 20. The average proficiency level for all inmates was Level 2,

the second-to-bottom level for each literacy category. /d. at 19, tbl.2.3.

Conversely, fewer than 1% of inmates performed at the top of the

literacy scale. Jd. at 19-20.

17

the Michigan Department of Corrections, 5.9% of the total

prison population were being treated for serious mental

illness in 2002. Michigan Dep’t of Corrections, Prisoner

Mental Health Servs., available at http://\www.michigan.gov/

corrections/0,1607,7-119-9741_ 9744—,00.html (last visited

Feb. 17, 2005).

In many ways, the typical indigent appellant is the picture

of Petitioner Antonio Halbert: a poor, special education

student with learning disabilities and mental impairments.

See JA 61-62. It is such individuals who Michigan claims

can represent themselves meaningfully on their first and only

appeal on the merits following their pleas. That position,

particularly when considered in light of Michigan’s complex

sentencing laws and appellate procedures, defies reality.

B. Portrait of an Appeal Following a Guilty Plea:

Complicated Errors and Procedural Pitfalls

Contrary to the myth that appeals following guilty pleas

are frivolous Gee Opp. Cert. 26), the success rate of these

appeals is relatively high. See Mara Matuszak, Note, Limiting

Michigan's Guilty and Nolo Contendere Plea Appeals, 73

U. Det. Mercy L. Rev. 431, 440-41, 443 (1996); see also

Robert K. Calhoun, Waiver of the Right to Appeal, 23

Hastings Const. L.Q. 127, 190-91 (1995) (discussing success

rates of criminal appeals and 1992-93 study of two appellate

courts which found that 24% of appeals after pleas received

some form of relief). By some accounts, anywhere from 12%

to 47% of Michigan appeals following guilty pleas result in

some form of relief. Matuszak, supra, at 443 (discussing 1994

report that set forth studies by the Michigan State Appellate

Defenders Office and the Michigan Appellate Assigned

Counsel System of appeals taken before MCL § 770.3a took

effect).

It also is untrue that these appeals are simple. Appeals

following guilty pleas involve complex and vital issues and

protect both the individual appellants and the system at large.

18

As recent events make clear, sentencing issues are common

on appeal. See generally Blakely v. Washington, 124 S. Ct.

2531 (2004); see also United States v. Booker, 125 S. Ct.

738 (2005); National Center for State Courts, Understanding

Reversible Error in Criminal Appeals 18-19 (1989) (study

of appeals in five state appellate courts finding high rate of

sentencing issues on appeal);'' Matuszak, supra, at 438-39

(discussing report finding that the majority of appeals

following guilty pleas in Michigan involve sentencing

issues). Sentencing guidelines, like Michigan’s, “are often

so bewilderingly complex as to virtually guarantee appellate

issues in a high percentage of sentencing decisions.” Calhoun,

supra, at 184. Moreover, unlike most other states, Michigan

requires a criminal defendant to raise complex issues such

as ineffective assistance of counsel as part of the first, direct

appeal.'?

Thus, an effective system for first appeals provides a

vital check on criminal justice proceedings, particularly the

integrity of the plea and sentencing process. Michigan’s

scheme leaves this safeguard largely in the hands of

unrepresented indigents on the premise that they can fend

11. According to the National Center for S tate Courts’s study:

Sentencing issues are raised in one-quarter of the appeals,

and it appears that sentencing issues are not simply “add-

on” issues to appeals that would otherwise have been

filed; a great number of appeals are filed raising only

sentencing issues. In addition, sentencing issues have a

high error rate. In fact, when sentencing is raised, the

courts find error 25 percent of the time.

National Center for State Courts, supra, at 18-19. Similarly, one

survey found that 65% of federal criminal appeals in 1994-95

involved sentencing issues. See Kevin R. Reitz, Sentencing Guideline

Systems and Sentence Appeals: A Comparison of Federal and State

Experiences, 91 Nw. U. L. Rev. 1441, 1491 (1997).

12. See generally People « Ginther, 212 N.W.2d 922 (Mich.

1973).

19

~

for themselves. A brief review of what that means, however,

shatters this notion.

1. Finding and Arguing a Point of Error

The indigent defendant who pleads guilty has only

twenty-one days to file a timely “Application for Leave to

Appeal,” which identifies and argues all points of error. MCR

7.205(A). Issues not raised by the indigent defendant are

waived. MCR 7.205(D)(4). On his own, therefore, the

indigent defendant quickly will have to analyze an array of

potential errors, including: What issues were lost as the result

of the plea?'’ Did the government explicitly or implicitly

violate the plea agreement?'* Did the judge meet all statutory

and procedural requirements to ensure the plea was

voluntary?'’ Were there any scoring or other errors under

the Michigan Sentencing Guidelines?'® Did the trial court

rely on inaccurate information in sentencing?'’ Did the State

fulfill its obligations in providing a transcript or other

13. See, e.g., Guilty Pleas, 91 Geo. L.J. 362, 372-79 (2003)

(reviewing rights retained and lost as result of guilty plea); see also

People v. Bulger, 614 N.W.2d 103, 133-34 (Mich. 2000) (Cavanagh,

J., dissenting) (discussing errors that survive guilty plea in Michigan).

14. See, e.g., People v. Nixten, 454 N.W.2d 160, 161 (Mich.

Ct. App. 1990) (finding error where government explicitly failed to

fulfill agreed sentence recommendation); United States v. Gonczy,

357 F.3d 50, 54 (1st Cir. 2004) (finding error where government

implicitly failed to fulfill agreed sentence recommendation by making

statements undercutting recommended sentence).

15. See MCR 6.302(B) (providing information court must give

defendant who pleads guilty); MCR 6.425(E) (providing information

court must give defendant at sentencing).

16. See, e.g., People v. Knolton, No. 237796, 2003 WL 1343001,

at *4 n.28 (Mich. Ct. App. Mar. 11, 2003) (remanding for resentencing

for guidelines error).

17. See, e.g., People v. Baker, 327 N.W.2d 403, 409 (Mich. Ct.

App. 1982) (remanding for reconsideration of sentence where trial

court may have relied on inaccurate information).

20

materials required by law?'* And did counsel provide

effective assistance in the plea and sentencing process? '’ This

task must be accomplished in less than a month by an

individual who typically cannot “[l]ocate two features of

information in [a] sports article.” Literacy Report, supra, at

10 (identifying abilities of individuals in prose literacy Level

2, the average proficiency level for inmates).

Simply determining whether a sentencing error exists

would give most lawyers pause. To identify such an error, an

indigent defendant would have to wander alone”® through

Michigan’s comprehensive statutory scheme, which includes

18. See People v. Plaza, 617 N.W.2d 687, 688 (Mich. 2000)

(Kelly, J., dissenting) (noting that court should have remanded

because indigent was denied transcript); see id. at 687 (Corrigan, J.,

concurring) (noting that remand unnecessary because indigent failed

to raise issue in pro se application for appea!).

19. See, e.g., Tollett v. Henderson, 411 U.S. 258, 266-67 (1973)

(plea does not foreclose ineffective assistance of counsel claims).

20. While MCL § 770.3a provides an indigent defendant with

appellate counsel when a sentence exceeds the guideline range, it

does not require counsel for other errors, such as an “error in scoring

the sentencing guidelines or inaccurate information relied upon in

determining the defendant’s sentence.” MCL § 769.34(10); see also

id. § 770.3a(2)(b) (requiring counsel where sentence exceeds

guidelines range); id. § 770.3a(3) (permitting but not requiring

appointment of counsel for some sentencing errors). If the sentence

exceeds the guidelines range, the court must advise the defendant

that he is entitled to court appointed counsel. MCR 6.425(E)(2)(b)(i).

The court also must state the reasons for the departure on the record,

MCL § 769.34(3), and advise the defendant orally and in writing

that he may appeal the sentence on the basis of the departure. See

MCR 6.425(E)(4). That process assumes, however, that the court

itself is aware that the sentence exceeded the guidelines, which is

not always the case given the complexity of the system. See Knolton,

2003 WL 1343001, at *4 n.28 (remanding for resentencing when

trial court failed to realize that sentence was outside guidelines range

and thus failed to follow procedures for guidelines departures).

21

nearly fifty provisions identifying Offense Variables, MCL

§§ 777.31 to 777.49a, Prior Record Variables, MCL §§ 777.50

to 777.57, and multiple sentencing grids, MCL §§ 777.61-

777.69. He also would have to ensure he is using the

guidelines in effect at the time of his offense. See MCL

§ 769.34(2). This task will not be easy given the frequent

changes to Michigan’s sentencing laws. See Sheila Robertson

Deming, Michigan's Sentencing Guidelines, 79 Mich. Bar J.

Online 6 (2000) (noting legislative amendments to guidelines

in ten different 1999 public acts with five different effective

dates), available at http://www.michbar.org/journal/

article.cfm?articlelD=92&volumeID =8&viewT ype=archive;

see also People v. Babcock, 666 N.W.2d 231, 235-37 (Mich.

2003) (providing background of Michigan’s replacement of

judicial sentencing guidelines with statutory guidelines)-

To help tackle the difficult statutory scheme, the indigent

defendant may turn to the State Court Administrative Office’s

“Guidelines Manuaf.” See Mich. Sentencing Guidelines

Manual (2005), available at http://courts.michigan.gov/mji/

resources/sentencing-guidelines/sg.htm. That the “user-

friendly” guide is over one hundred seventy pages long,

contains seven pages of instructions, four pages of

definitions, and an array of grids and offense charts, reflects

the daunting task facing a lawyer reviewing the propriety of

a sentence, let alone someone who typically cannot

understand a bar graph or solve basic math problems.

See Literacy Report, supra, at 10 (identifying abilities of

individuals in document literacy Levels 2 and 3 and

quantitative literacy Level 3, levels at or above the average

inmate). Petitioner’s improper sentence reflects that even

those versed in the guidelines, including probation officials,

counsel, and trial judges, are prone to error. See Pet. Br. 35-

36 (discussing errors in Petitioner’s sentence under the

guidelines).

22

After making his way through the Manual, the indigent

defendant would have to research judicial interpretations of

the guidelines. In the last few years, the Michigan Supreme

Court had to clarify “unfamiliar or confusing” guideline

requirements, People v. Stauffer, 640 N.W.2d 869, 871 (Mich.

2002), and even included a twelve paragraph appendix to

one of its decisions to aid practitioners on Michigan’s

intricate sentencing procedures. Babcock, 666 N.W.2d at 244-

45. Though the Michigan Supreme Court summarily found

in dicta that the State’s guidelines are unaffected by Blakely,

the court is somewhat divided on the issue,’ and has yet to

fully address Blakely or the implications of Booker. Surely,

an indigent defendant cannot seriously be expected to develop

Blakely and Booker-related arguments given the complexity

of the issues.

Assuming, however, that the indigent defendant could

in fact identify an error in sentencing—to say nothing of the

many other potential errors hidden from the untrained eye??—

he would then need to decide whether to appeal. For instance,

21. In People v. Claypool, 684 N.W.2d 278 (Mich. 2004), the

Michigan Supreme Court concluded in a footnote that “the Michigan

system is unaffected by the holding in Blakely. . . .” Id. at 286 n.14.

The statement was in response to Chief Justice Corrigan’s opinion

concurring in part and dissenting in part, which expressed concern

that “the majority’s sweeping language regarding judicial powers to

effect departures (not limited to downward departures) will invite

challenges to Michigan’s scheme; it appears to conflict with principles

set out in Blakely.” Id. at 287 (Corrigan, C.J., concurring in part and

dissenting in part). See also id. at 296 (Kelly, J., concurring in part

and dissenting in part) (“I do not believe the Court should take a

position on the application of Blakely v. Washington to Michigan’s

sentencing scheme. The issue was neither raised nor briefed in this

case.”’).

22. See Bulger, 614 N.W.2d at 134-35 (Cavanagh, J., dissenting)

(providing samples of actual Michigan guilty plea appeals reflecting

complex issues in addition to sentencing).

23

he likely will be unaware that if he succeeds in having

his sentence overturned, he may be subject to longer

incarceration upon resentencing. Without the advice of

counsel to explain the risks, the indigent defendant likely

will proceed with an appeal that may be contrary to his

interests. If he does proceed on his own, he will face his

next hurdle: articulating the error in writing and meeting all

Michigan procedural requirements to perfect the appeal.

2. Complying with Michigan’s Appellate Rules

The right to counsel on the first merits appeal is important

not only to identify and present the substantive legal grounds,

but also for “a different, albeit related, aspect of counsel’s

role, that of expert professional whose assistance is necessary

in a legal system governed by complex rules and procedures

for the defendant to obtain a decision at all—much less a

favorable decision—on the merits of the case.” Evitts, 469

U.S. at 394 n.6. Like most states, Michigan’s appellate

procedures are complex. The procedures for perfecting

appeals following guilty pleas are no exception.

Under MCR 7.205, the indigent defendant’s so-called

“Application” for appeal must be filed within twenty-one

days from entry of the judgment, MCR 7.205(A), though the

court may accept an untimely filing up to one year after

judgment. See MCR 7.205(F)(i)-(4). Any issue not raised in

the Application is waived, both in state court actions,” and

in subsequent federal habeas corpus proceedings.

See O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999).

To meet the filing requirements, the indigent defendant

must submit five copies of his Application, “stating the date

and nature of the judgment or order appealed from; concisely

23. MCR 7.205(D)(4); Plaza, 617 N.W.2d at 687 (Corrigan, J.,

concurring) (indigent’s failure to raise issue inpro se application for

appeal justified Michigan Supreme Court’s denial of review of

claimed erroneous deprivation of transcript).

24

reciting the appellant’s allegations of error and the relief

sought; [and] setting forth a concise argument, conforming

to MCR 7.212(C)... .” MCR 7.205(B)(1). MCR 7.212(C),

in turn, sets forth the required contents of appellate briefs.

Specifically, the indigent’s appeal from a plea-based

conviction must, using the specific format required under

the rule, include a statement of jurisdiction, the standard of

review, record citations, the relevant statutes or constitutional

provisions, a statement of the issues, and a legal argument.

MCR 7.212(C)(4)-(7).

The indigent defendant also must obtain and file multiple

copies of several documents, including the judgment, docket

entries, and certain transcripts, see MCR 7.205(B), and must

either tender a $375 filing fee or submit a motion to waive

fees and an affidavit of indigency. See MCL § 600.321(1)(a);

MCR 2.002.

Unlike defendants with financial resources, most

indigent defendants who plead guilty will not have a lawyer-

like Application and supporting brief. Nor will they have

counsel’s insights regarding the issues that should be raised

and the risks of not raising a particular issue. Instead,

Michigan law provides defendants who plead guilty a three-

page form Application created by the State Court

Administrative Office. MCR 6.425(E)(2)(d); see JA 66-71

(Petitioner’s Application).?*

Perhaps recognizing that few unrepresented indigents

will meet the twenty-one day filing deadline, the form begins

with a “Statement of Delay” section for the defendant to

explain why the filing is untimely. See JA 66. The form also

requires entry of information such as “ e Codes, MCL

citation/PACC Code,” JA 67, and includes a detailed

instruction sheet concerning all of the documents needed to

24. The current version of the form is available at http://

courts.michigan.gov/scao/courtforms/appeals/cc405.pdf (last visited

Feb. 16, 2005).

25

accompany the filing. Although following these directions

might not pose a major challenge for a college graduate, the

average indigent inmate has very low “document literacy”

skills, and typically cannot complete an application for a

social security card or enter information on an automobile

maintenance record form. Literacy Report, supra, at 10, 17.

Aside from these procedural formalities, the form

requires the indigent defendant to set forth each of the

following: the questions presented for appeal, the statement

of the facts, the arguments, and the relief requested. JA 68-

71. Regarding the legal argument section, the indigent

defendant is advised to “state the law that supports your

position and explain how the law applies to the facts of your

case.” JA 69. That is the extent of guidance the indigent

defendant is provided on making his substantive case for

appeal.’*

The procedural hoops only become more difficult if the™

indigent defendant has an ineffective assistance of trial

counsel claim. As a prerequisite to appellate review, the

defendant typically must raise an ineffective assistance of

counsel claim in a motion to withdraw his plea. People v.

Ginther, 212 N.W.2d 922, 925 (Mich. 1973); accord People

v. Johnson, 373 N.W.2d 263, 266 (Mich. Ct. App. 1985) (per

curiam). This motion must be filed within twenty-one days

of judgment. MCR 6.311(A); see also MCR 7.205(A). Or,

the indigent defendant can take his chances that leave to

25. In this regard, the “simplicity” of the instructions can in

fact be a roadmap to waiver, given some of the heightened

preservation requirements for later review. See, e.g., Howell v.

Mississippi, 125 S. Ct. 856, 859 (2005) (per curiam) (preservation

of federal claim in this Court or on federal habeas corpus requires

defendant to identify with specificity doctrinal basis for claim);

Baldwin v. Reese, 124 S. Ct. 1347, 1350 (2004) (reference to

“ineffective assistance” of counsel in state court filing insufficient

to preserve federal ineffective assistance of counsel claim).

26

appeal will be granted. If it is, a defendant may file a motion

to withdraw a plea within fifty-six days “after the

commencement of the time for filing the defendant-

appellant’s brief.” MCR 7.208(B)(1).

In addition to the written motion, the indigent defendant

must present “a testimonial record at the trial court level .. .

which evidentially supports his claim and which excludes

reasonable hypotheses consistent with the view that his trial

lawyer represented him adequately.” Ginther, 212 N.W.2d

at 925 (citation omitted). Typically, this burden requires an

indigent defendant to seek an evidentiary hearing on the

ineffective assistance claim. /d. Thus, the indigent defendant

must file a motion for an evidentiary hearing with the trial

court. /d.; see also People v. Mitchell, 560 N.W.2d 600, 612

(Mich. 1997) (noting trial counsel is “necessary witness” at

ineffective assistance of counsel hearing). Failure to comply

with these procedural steps can waive the ineffective

assistance claim. People v. Marji, 447 N.W.2d 835, 839

(Mich. Ct. App. 1989) (finding defendant waived ineffective

assistance of tral counsel claim by failing to move for a new

trial or evidentiary hearing before the trial court); People v.

Lawson, 335 N.W.2d 43, 44 (Mich. Ct. App. 1983) (per

curiam) (“{Tjhis Court will not review a claim for ineffective

assistance of counsel based on allegations not supported by

the record where no motion for a new trial or for an

evidentiary hearing or a motion for remand has been filed.”’)

(citation omitted).

Here, for example, Petitioner filed “a handwritten motion

to withdraw pleas . . . prepared by another prisoner without

benefit of the trial record.” JA 61. Although Petitioner

managed to file this motion within the allotted twenty-one

days, he did not include his ineffective assistance claim.

JA 43. The court incorrectly denied his motion as “not

timely.” JA 43. The court likely based its decision on

Petitioner’s failure to demonstrate “good cause” to withdraw

— SOO tial

27

his plea, which could have been satisfied had the ineffective

assistance claim been presented properly.

Petitioner claims that trial counsel was ineffective in part

for failing to object to the trial court’s erroneous sentencing

determination. Counsel’s decision to object at sentencing is

“typically viewed as a tactical decision.” People v. Miller,

No. 221852, 2001 WL 718585, at *2 (Mich. Ct. App. June

26, 2001) (per curiam) (reversing for new sentence based on

ineffective assistance claim where trial counsel failed to

object to trial court’s scoring error). A decision on tactics

necessitates trial counsel’s testimony at a Ginther hearing—

something wholly outside the competence of an indigent

defendant (or jailhouse lawyer).

Appellate counsel thus serves an essential function—

providing a professional second-look at trial counsel’s

performance, at the government’s conduct, and at sentences

that may be improperly based—hardly simple or trivial issues.

C. The “Protections” Provided Under Michigan’s

Scheme Are Unrealistic and No Substitute for

Counsel

Michigan suggests that a poor defendant will be able to

overcome the obstacles above because he “will have

sufficient materials available to permit him to present his

claims fairly and thus receive a meaningful appeal.” Opp.

Cert. 20. The flaw with this, of course, is that “[t]he right to

have the assistance of counsel is too fundamental and absolute

to allow courts to indulge in nice calculations as to the amount

of prejudice arising from its denial.” Glasser v. Unitea States,

315 U.S. 60, 76 (1942), superseded on other grounds by

statute as recognized in Bourjaily v. United States, 483 U.S.

171, 181 (1987). In any event, the materials and resources

available to indigent appellants in Michigan are scarcely

better than no assistance at all.

28

Michigan stresses that indigent defendants receive free

court documents and transcripts and the “nontechnical and

easily understocd” form Application for appeal discussed

above. Opp. Cert. 20. This Court previously has recognized

that such materials are no substitute for having a lawyer cull

the record, identify errors, and craft an appellate brief. See

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

Swenson, Missouri argued that no counsel was necessary to

indigents on first appeal of nght because the State provided

the indigent defendant a free transcript and trial counsel had

filed a “motion for new trial which specifically designated

the issues which could be considered on direct appeal.” /d.

at 259. This Court rejected the argument, concluding 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 trial transcript” are benefits that cannot be denied to a

defendant simply because he is poor. /d.; see also Evitts, 469

U.S. at 394 (citing Swenson for importance of preparation

of brief by attorney in first appeal of right). Nor will an

indigent defendant, as reflected in Petitioner’s case, in most

cases have the assistance of written motions. And in the few

cases where motions exist, the papers likely will not

adequately address appellate issues. See Bulger, 614 N.W.2d

at 139-40 (Cavanagh, J., dissenting) (discussing why motions

are inadequate substitutes for an appellate brief).

Given their limited abilities and the minimal materials

available to assist, many indigent defendants will, as

Petitioner did, turn to jailhouse lawyers or use briefs of other

parties that circulate around the prison. That hardly provides

a meaningful appeal. “It is indisputable that prison ‘writ

writers’ .. . are sometimes a menace to prison discipline and

that their petition{s] are often so unskillful as to be a burden

on the courts which receive them.” Johnson v. Avery, 393

29

U.S. 483, 488 (1969); see also id. at 499-500 (White, J.

dissenting) (discussing burdens on courts and prisons from

jailhouse lawyers and risks to “clients” of prisoners acting

as counsel). Though the inmate who assisted Petitioner

managed to identify the right to counsel issue in this appeal,

that was only after the issue was well-known and fully briefed

in Kowalski. Other errors will not be so easily identifiable,

nor will briefing be so readily available to use as a guide.

Indeed, the inmate who helped Petitioner omitted several

meritorious claims. See Pet. Br. 36-37.

Even when briefs of others are available, this Court has

rejected arguments that the briefs of other defendants are

sufficient to protect the right to counsel. In Penson v. Ohio,

for example, the Court rejected Ohio’s argument that a

defendant who received no appellate counsel was adequately

protected by briefs filed by co-defendants: “One party’s right

to representation on appeal is not satisfied by simply relying

on representation provided to another party. ... A criminal

appellant is entitled to a single-minded advocacy for which

the mere possibility of a coincidence of interest with a

represented codefendant is an inadequate proxy.” 488 U.S.

at 86-87.

Some indigent defendants, of course, may find a real

lawyer willing to take their appeals pro bono. Despite pro

bono work being done in record numbers throughout this

country, the bar simply cannot meet the needs of indigent

criminal defendants on a voluntary basis. Cf Simran Bindra

& Pedram Ben-Cohen, Public Civil Defenders: A Right To

Counsel for Indigent Civil Defendants, 10 Geo. J. on Poverty

L. & Pol’y 1, 6 (2003). For example, despite the fact that

Maine has the “highest pro bono rate in the country amongst

its lawyers, a study showed that it was impossible for the

State’s lawyers to volunteer enough time to meet the legal

needs of its indigents.” Katja Cerovsek & Kathleen Kerr,

Opening the Doors To Justice: Overcoming The Problem of

30

Inadequate Representation for the-Indigent, 17 Geo. J. Legal

Ethics 697, 697-98 (2004) (citation omitted); see also id. at

697 (noting that there is “only one lawyer for every 9,000

Americans whose low income would qualify for civil legal

aid”). The inability of pro bono to fill this gap may be even

greater in the criminal context given the complexity of the

law and the understandable reluctance of those untrained in

this field to take on a case where they lack the experience or

background to do so effectively. Cf. Robert J. Martin & Walter

Kowalski, “A Matter of Simple Justice”: Enactment of New

Jersey's Municipal Public Defender Act, 51 Rutgers L. Rev.

637, 651-52 (1999) (discussing limitations of using pro bono

counsel for criminal cases).

In sum, even the simplified example above confirms that

“[t]o prosecute the appeal, a criminal appellant must face an

adversary proceeding that—like a trial—is governed by

intricate rules that to a layperson would be hopelessly

forbidding. An unrepresented appellant—like an

unrepresented defendant at trial—is unable to protect the vital

interests at stake.” Evitts, 469 U.S. at 396. All the more so to

the poor, functionally illiterate defeiidants targeted by MCL

§ 770.3a.

CONCLUSION

The judgment of the Michigan Court of Appeals should

be reversed.

MALIA N. Brink

INDIGENT DEFENSE COUNSEL

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS

1150 18th Street, NW

Suite 950

Washington, DC 20036

(202) 872-8600

Counsel for National

Association of Criminal

Defense Lawyers

Paut M. RASHKIND

NATIONAL ASSOCIATION OF

FEDERAL DEFENDERS

150 West Flagler Street

Suite 1500

Miami, FL 33130

(305) 536-6900

Counsel for National

Association of Federal

Defenders

* Counsel of Record

Respectfully submitted,

CraiGA. STEWART

ARNOLD & PorTER LLP

399 Park Avenue

New York, NY 10022

(212) 715-1000

ANTHONY J. FRANZE*

JosEepH M. MEapows

ARNOLD & PorTER LLP

555 Twelfth Street, NW

Washington, DC 20004

(202) 942-5000

SHEILA B. SCHEUERMAN

TEMPLE UNIVERSITY

SCHOOL OF Law

1719 N. Broad Street

Philadelphia, PA 19122

(215) 204-7103

Counsel for National

Association of Criminal

Defense Lawyers