Halbert v. Michigan

545 U.S. 605

Case Year: 2005

Case Ruling: 6-3, Vacated and Remanded

Opinion Justice: Ginsburg

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Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Kennedy, O'Connor, Souter, Stevens


1st Concurring Opinion



1st Dissenting Opinion

Author: Thomas

Joiner(s): Scalia, Rehnquist

2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



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The state of Michigan has a two-tier appellate system consisting of the state supreme court and the intermediate court of appeals. The Michigan Supreme Court has discretion over whether to hear appeals. Prior to 1994 the court of appeals heard, by right, all appeals from criminal convictions.

To reduce the workload of the court of appeals, a 1994 amendment to the Michigan Constitution changed the process for appeals if a criminal defendant plead guilty or nolo contendere. As amended, the state constitution reads: "In every criminal prosecution, the 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." Under the new amendment, which the state legislature codified, a defendant convicted by plea who seeks review in the Michigan Court of Appeals must now file an application for leave to appeal. In response, the court of appeals may "grant or deny the application; enter a final decision; [or] grant other relief." If the court grants leave, "the case proceeds as an appeal of right." Also, under Michigan law, most indigent defendants convicted by plea must proceed pro se (that is, on his or her own, without the help of an attorney) when they attempt to appeal their cases.

After passage of the amendment, several Michigan judges began to deny appointed appellate counsel to indigents who pleaded guilty. Rejecting challenges based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution, in People v. Bulger (2000) the Michigan Supreme Court upheld this practice. It concluded that appointment of counsel is not required for several reasons: court of appeals review following plea-based convictions is by leave and is thus "discretionary"; "[p]lea proceedings are ... shorter, simpler, and more routine than trials"; and by entering a plea, a defendant "accede[s] to the state's fundamental interest in finality."

This case began when Antonio Dwayne Halbert pleaded nolo contendere to two counts of second-degree criminal sexual conduct. During Halbert's plea colloquy, the trial court asked him: "You understand if I accept your plea you are giving up or waiving any claim of an appeal as of right?" Halbert answered, "Yes, sir." The court then advised Halbert of certain instances in which, although the appeal would not be as of right, the court nevertheless "must" or "may" appoint appellate counsel. The court did not tell Halbert, however, that it could not appoint counsel in any other circumstances, including Halbert's own case.

"THE COURT: You understand if I accept your plea and you are financially unable to retain a lawyer to represent you on appeal, the Court must appoint an attorney for you if the sentence I impose exceeds the sentencing guidelines or you seek leave to appeal a conditional plea or the prosecutor seeks leave to appeal or the Court of Appeals or Supreme Court grants you leave to appeal. Under those conditions I must appoint an attorney, do you understand that?


"THE COURT: Further, if you are financially unable to retain a lawyer to represent you on appeal, the Court may appoint an attorney for you if you allege an improper scoring of the sentencing guidelines, you object to the scoring at the time of the sentencing and the sentence I impose exceeds the sentencing guidelines as you allege it should be scored. Under those conditions I may appoint an attorney for you, do you understand that?

"THE DEFENDANT: Yes, sir."

At Halbert's sentencing hearing, defense counsel requested that the sentences for the two counts run concurrently, but urged no error in the determination of Halbert's exposure under the Michigan sentencing guidelines. The trial court set Halbert's sentences to run consecutively. Halbert submitted a handwritten motion to withdraw his plea the day after sentencing. Denying the motion, the trial court stated that Halbert's "proper remedy is to appeal to the Michigan Court of Appeals."

Twice thereafter and to no avail, Halbert asked the trial court to appoint counsel to help him prepare an application for leave to appeal to the intermediate appellate court. The trial court denied the request. Halbert next sent the trial court a letter and accompanying motion, again seeking appointed counsel. Halbert stated that his sentence had been misscored and that he needed the aid of counsel to preserve the issue before undertaking an appeal. Halbert also related that he had "required special education due to learning disabilities" and was "mentally impaired." The trial court denied Halbert's motion, citing the state supreme court's decision in Bulger and stating that Halbert "does not have a constitutional ... right to appointment of appellate counsel to pursue a discretionary appeal."

Again acting pro se, Halbert filed an application for leave to appeal. He asserted claims of sentencing error and ineffective assistance of counsel, and sought remand for appointment of appellate counsel and resentencing. The court of appeals denied Halbert's application "for lack of merit in the grounds presented." The state supreme court, dividing 5 to 2, also denied Halbert's application for leave to appeal to that court.



The Federal Constitution imposes on the States no obligation to provide appellate review of criminal convictions. Having provided such an avenue, however, a State may not "bolt the door to equal justice" to indigent defendants. Griffin v. Illinois (1956). Griffin held that, when a State conditions an appeal from a conviction on the provision of a trial transcript, the State must furnish free transcripts to indigent defendants who seek to appeal. Douglas [ v. California] (1963) relied onGriffin's reasoning to hold that, in first appeals as of right, States must appoint counsel to represent indigent defendants.Ross [ v. Moffitt] (1974) 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....

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." 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." Under the California system at issue in Douglas, the first-tier appellate court independently examined the record to determine whether to appoint counsel. 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." In contrast, when a poor person appealed, "the appellate court [wa]s forced to prejudge the merits [of the case] before it c[ould] even determine whether counsel should be provided."

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. 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. 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 transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case."...

We granted certiorari to consider whether the denial of appointed counsel to Halbert violated the Fourteenth Amendment. We now vacate the judgment of the Michigan Court of Appeals.

Petitioner Halbert's case is framed by two prior decisions of this Court concerning state-funded appellate counsel, Douglasand Ross. The question before us is essentially one of classification: With which of those decisions should the instant case be aligned? We hold that Douglas provides the controlling instruction. Two aspects of the Michigan Court of Appeals' process following plea-based convictions lead us to that conclusion. First, in determining how to dispose of an application for leave to appeal, Michigan's intermediate appellate court looks to the merits of the claims made in the application. Second, indigent 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 does not thereby forfeit all opportunity for appellate review. Although he relinquishes access to an appeal as of right, he is entitled to apply for leave to appeal, and that entitlement is officially conveyed to him. Of critical importance, the tribunal to which he addresses his application, the Michigan Court of Appeals, unlike the Michigan Supreme Court, sits as an error-correction instance.

The Court of Appeals may respond to a leave application in a number of ways. It "may grant or deny the application; enter a final decision; grant other relief; request additional material from the record; or require a certified concise statement of proceedings and facts from the court ... whose order is being appealed." 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 entails 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 require an application for leave to appeal. Therefore, Michigan maintains, Ross is dispositive of this case. The Court in Ross, however, recognized that leave-granting determinations by North Carolina's Supreme Court turned on considerations other than the commission of error by a lower court, e.g., the involvement of a matter of "significant public interest." 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 defendant's claims, not by the general importance of the questions presented.

Whether formally categorized as the decision of an appeal or the disposal of a leave application, the Court of Appeals' ruling on a plea-convicted defendant's claims provides the first, and likely the only, direct review the defendant's conviction and sentence will receive. Parties like Halbert, however, are disarmed in their endeavor to gain first-tier review. As the Court in Ross emphasized, a defendant seeking State Supreme Court review following a first-tier appeal as of right earlier had the assistance of appellate counsel. The attorney appointed to serve at the intermediate appellate court level will have reviewed the trial court record, researched the legal issues, and prepared a brief reflecting that review and research. 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....

Persons in Halbert's situation are particularly handicapped as self-representatives. As recounted earlier this Term, "[a]pproximately 70% of indigent defendants represented by appointed counsel plead guilty, and 70% of those convicted are incarcerated." "[Sixty-eight percent] of the state prison populatio[n] did not complete high school, and many lack the most basic literacy skills." "[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 in a lengthy newspaper article." Many, Halbert among them, have learning disabilities and mental impairments....

While the State has a legitimate interest in reducing the workload of its judiciary, providing indigents with appellate counsel will yield applications easier to comprehend. Michigan's Court of Appeals would still have recourse to summary 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.

Michigan contends that, even if Halbert had a constitutionally guaranteed right to appointed counsel for first-level appellate review, he waived that right by entering a plea of nolo contendere. We disagree. At the time he entered his plea, Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo. Moreover, as earlier observed, the trial court did not tell Halbert, simply and directly, that in his case, there would be no access to appointed counsel.

For the reasons stated, we vacate the judgment of the Michigan Court of Appeals and remand the case for further proceedings not inconsistent with this opinion.

It is so ordered.


Petitioner Antonio Halbert pleaded no contest to charges that he sexually assaulted his stepdaughter and another young girl. Michigan law did not provide Halbert--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....

The majority ... 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. Nor does the majority attempt to anchor its holding in the history of those Clauses. 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. The majority ignores the bulk of that jurisprudence and leaves those arguments unanswered.

Instead, the majority pins its hopes on a single case: Douglas v. California (1963). Douglas, however, does not support extending the right to counsel to any form of discretionary review, as Ross v. Moffitt, (1974), and later cases make clear. Moreover, Michigan has not engaged in the sort of invidious discrimination against indigent defendants that Douglascondemns. 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....

Michigan's system bears some similarity to the state systems at issue in both Douglas and Ross. Like the defendant inDouglas, Halbert requests appointed counsel for an initial appeal before an intermediate appellate court. But like the defendant in Ross, Halbert requests appointed counsel for an appeal that is discretionary, not as of right. Crucially, however, Douglas noted that its decision extended only to initial appeals as of right--and later cases have repeatedly reaffirmed that understanding. This Court has never required States to appoint counsel for discretionary review. NeitherDouglas 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. Those cases, however, have a common theme. States may not impose financial barriers that preclude indigent defendants from securing appellate review altogether. Nor may States create "'unreasoned distinctions'" among defendants, that "arbitrarily cut off appeal rights for indigents while leaving open avenues of appeals for more affluent persons."

Far from being an "arbitrary" or "unreasoned" distinction, Michigan's differentiation between defendants convicted at trial and defendants convicted by plea is sensible. First and perhaps foremost, the danger of wrongful convictions is less significant than in Douglas. In Douglas, California preliminarily denied counsel to all indigent defendants, regardless of whether they maintained their innocence at trial or conceded their guilt by plea. Here, Michigan preliminarily denies paid counsel only to indigent defendants who admit or do not contest their guilt. And because a defendant who pleads guilty "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea," the potential issues that can be raised on appeal are more limited....

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.

The brief history of Michigan's system confirms this. When Michigan voters amended the State Constitution to establish the current system, roughly 13,000 civil and criminal appeals per year clogged the Michigan Court of Appeals' docket. Of those, nearly a third were appeals by criminal defendants who had pleaded guilty or no contest. Even though at the time plea-convicted defendants were appointed paid appellate counsel, few of these defendants were granted relief on appeal. Simply put, Michigan's bar and bench were devoting a substantial portion of their scarce resources to thousands of cases with little practical effect. Reallocating resources was not "invidious discrimination" against criminal defendants, indigent or otherwise. It was an attempt to ensure "that frivolous appeals [were] not subsidized and public moneys not needlessly spent."

Today's decision will therefore do no favors for indigent defendants in Michigan--at least, indigent defendants with nonfrivolous claims. While defendants who admit their guilt will receive more attention, defendants who maintain their innocence will receive less. Even some defendants who plead guilty will feel the pinch, because plea-convicted defendants are entitled to counsel in preparing their leave applications if, for example, they appeal from conditional pleas, or their sentences exceed the applicable guidelines ranges. And any plea-convicted defendant granted leave to appeal is entitled to appointed counsel. Holding Michigan's resources constant (since we have no control over the State's bar or budget), the majority's policy choice to redistribute the State's limited resources only harms those most likely to have worthwhile claims--to say nothing of "the cost of enabling courts and prosecutors to respond to the 'over-lawyering' of minor cases." Then, too, Michigan is under no constitutional obligation to provide appeals for plea-convicted defendants. 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 defendants would prefer appeals with limited access to counsel than no appeals at all....