1 (Slip Opinion) OCTOBER TERM, 2004

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United Statesv. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

HALBERT v . MICHIGAN

CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN
No. 03–10198. Argued April 25, 2005—Decided June 23, 2005
In Douglasv. California, 372 U. S. 353, this Court held that, in criminal

proceedings, a State must provide counsel for an indigent defendant in a first appeal as of right. Two considerations were key: (1) An ap

peal “of right” yields an adjudication on the “merits,” id., at 357, and (2) first-tier review differs fromsubsequent appellate stages “at which the claims have once been presented by a lawyer and passed upon by an appellate court,” id. , at 356. Later, in Rossv. Moffitt, 417 U. S. 600, the Court held that a State need not appoint counsel to aid a poor person seeking to pursue a second-tier discretionary appeal to the State’s highest court, or, thereafter, certiorari review in this Court. Id., at 610–612, 615–618. The Douglas rationale does not ex

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

cause, at that stage, error correction is not the reviewing court’s prime function. Id., at 615. Principal criteria for state high court re

view, Rossnoted, include whether the i ssues presented are of signifi

cant public interest, whether the cause involves legal principles of major significance to the State’s jurisprudence, and whether the deci

sion below is in probable conflict with the high court’s precedent. Ibid. Further, a defendant who has re ceived counsel’s aid in a firsttier appeal as of right would be armed with a transcript or other re

cord of trial proceedings, a brief in the appeals court setting forth his claims, and, often, that court’s opinion disposing of the case. Ibid.

Michigan has a two-tier appellate system. The State Supreme Court hears appeals by leave only. The intermediate Court of Ap

peals adjudicates appeals as of right from criminal convictions, ex

cept that a defendant convicted on a guilty or nolo contendereplea who seeks intermediate appellate co urt review must apply for leave to appeal. Under Michigan law, most indigent defendants convicted on a plea must proceed pro sein seeking leave to appeal to the inter

-2 HALBERT v. MICHIGAN

Syllabus

mediate court. In People v. Bulger , the Michigan Supreme Court held that the Fourteenth Amendment’s Equal Protection and Due Process Clauses do not secure a right to appointed counsel for plea-convicted defendants seeking review in the intermediate appellate court for these reasons: Such review is discretionary; plea proceedings are shorter, simpler, and more routine than trials; and a defendant en

tering a plea accedes to the State’s fundamental interest in finality. Petitioner Halbert pleaded nolo contendere to two counts of crimi

nal sexual conduct. During Halbert’s plea colloquy, the trial court advised him of instances in which it “must” or “may” appoint appel

late counsel, but failed to tell him that it could not appoint counsel in any other circumstances, including Halbert’s own case. The day after his sentence was imposed, Halbert moved to withdraw his plea. De

nying the motion, the trial court stated that Halbert’s proper remedy was to appeal to the State Court of Appeals. Twice thereafter, Hal

bert asked the trial court to appoint counsel to help him prepare an application for leave to appeal to the intermediate court, stating that his sentence had been misscored, that he needed counsel to preserve the issue before undertaking an appeal , that he had learning disabili

ties and was mentally impaired, and that he had been obliged to rely on fellow inmates in preparing his pro se filings. The court denied Halbert’s motion, citing Bulger. Halbert then filed a pro seapplica

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

sistance of counsel and seeking, inter alia , remand for appointment of appellate counsel. The Court of Appeals denied leave “for lack of merit in the grounds presented.” The Michigan Supreme Court de

clined review. Held: The Due Process and Equal Protec tion Clauses require the ap

pointment of counsel for defendants , convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals. Pp. 9–17.

Two aspects of the Michigan Co urt of Appeals’ process following plea-based convictions compel the conclusion that Douglas , not Ross, controls here. First, in ruling on an application for leave to appeal, that court looks to the merits of the appellant’s claims. Second, indi

gent defendants pursuing first-tier review in the Court of Appeals are generally ill equipped to represent themselves. A defendant who pleads guilty or nolo contendere in a Michigan court, although he re

linquishes access to an appeal as of right, is entitled to apply for leave to appeal, and that entitlement is officially conveyed to him. Of critical importance, the intermediate appellate court, unlike the Michigan Supreme Court, sits as an error-correction instance. A court Rule provides that the intermediate court may respond to a leave application in a number of ways: It may grant or deny the ap

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

Syllabus plication, enter a final decision, grant other relief, request additional material from the record, or requ ire a certified concise statement of proceedings and facts from the lower court. The court’s response to the leave application by any of these alternatives—including denial ofleave—necessarily entails some evaluation of the merits of the applicant’s claims. Pp. 9–10.

This Court rejects Michigan’s argument that Ross is dispositive here because review in the intermediate appellate court following a plea-based conviction is discretion ary, given the necessity of filing an application for leave to appeal. The RossCourt recognized that leave-granting determinations by a State’s highest court turn on con

siderations other than a lower court’s commission of error, e.g. , the involvement of a matter of “significant public interest.” 417 U. S., at 615. Michigan’s Supreme Court, like the highest courts of other States, sits not to correct errors in individual cases, but to decide matters of larger public import. By contrast, the intermediate court, as an error-correction instance, is guided in responding to leave to appeal applications by the merits of the particular defendant’s claims, not by the general importance of the questions presented. Pp. 10–11.

Whether formally categorized as the decision of an appeal or the disposal of a leave application, the intermediate appellate court’s rul

ing on a plea-convicted defendant’s claims provides the first, and likely the only, direct review the defendant’s conviction and sentence will receive. Parties like Halbert, however, are disarmed in their en

deavor to gain first-tier review. Rossemphasized that a defendant seeking State Supreme Court review following a first-tier appeal as of right earlier had the assistance of appellate counsel, who will have reviewed the trial court record, researched the legal issues, and pre

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

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

pellate court addressing the issues counsel raised. Without such guides keyed to a court of review, a pro se applicant’s entitlement to seek leave to appeal to Michigan’s intermediate court may be more formal than real. Cf. Swenson v. Bosler, 386 U. S. 258 (per curiam). Persons in Halbert’s situation, many of whom have little education, learning disabilities, and mental impairments, are particularly handicapped as self-representatives. See Kowalskiv. Tesmer , 543 U. S. ___, ___ (G INSBURG , J., dissenting). Further, appeals by defen

dants convicted on their pleas may be “no less complex than other appeals.” Id. , at ___. Michigan’s complex procedures for seeking leave to appeal after sentencing on a plea, moreover, may intimidate the uncounseled. See id. , at ___ – ___. The State does have a legiti

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

-4 HALBERT v. MICHIGAN

Syllabus gents with appellate counsel will yi eld applications easier to compre

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

mary denials of leave applications in cases not warranting further review. And when a defendant’s case presents no genuinely arguable issue, appointed counsel may so inform the court. Pp. 11–16.

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

bert had a constitutionally guaranteed right to appointed counsel for first-level appellate review, he waived that right by entering a nolo contendereplea. At the time he entered his plea, Halbert had no rec

ognized right to appointed appellate counsel he could elect to forgo. Moreover, the trial court did not tell Halbert, simply and directly, that in his case, there would be no access to appointed counsel. Cf. Iowav. Tovar, 541 U. S. 77, 81. Pp. 16–17. Vacated and remanded.

G INSBURG , J., delivered the opinion of the Court, in which S TEVENS , O’C ONNOR , KENNEDY , S OUTER , and B REYER , JJ., joined. T HOMAS , J., filed a dissenting opinion, in which S CALIA , J., joined, and in which R EHNQUIST , C. J., joined as to all but Part III–B–3._________________

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

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

No. 03–10198

ANTONIO DWAYNE HALBERT, PETITIONER v. MICHIGAN

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN [June 23, 2005]
J USTICE G INSBURGdelivered the opinion of the Court. In 1994, Michigan voters approved a proposal amending the State Constitution to provide that “an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court.” Mich. Const., Art. 1, §20. Thereafter, “several Michigan state judges began to deny appointed appellate counsel to indigents” convicted by plea. Kowalskiv. Tesmer , 543 U. S. ___, ___ (2004) (slip op., at 1). Rejecting challenges based on the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Federal Constitution, the Michigan Supreme Court upheld this practice, and its codification in Mich. Comp. Laws Ann. §770.3a (West 2000). Peoplev. Harris , 470 Mich. 882, 681 N. W. 2d 653 (2004); Peoplev. Bulger , 462 Mich. 495, 511, 614 N. W. 2d 103, 110 (2000). Petitioner Antonio Dwayne Halbert, convicted on his plea of nolo contendere , sought the appointment of counsel to assist him in applying for leave to appeal to the Michi

gan Court of Appeals. The state trial court and the Court of Appeals denied Halbert’s requests for appointed coun

sel, and the Michigan Supreme Court declined review.2 HALBERT v. MICHIGAN

Opinion of the Court Michigan Court of Appeals review of an application for leave to appeal, Halbert contends, ranks as a first-tier appellate proceeding requiring appointment of counsel under Douglasv. California, 372 U. S. 353 (1963). Michi

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

cretionary and, for an appeal of that order, Rossv. Moffitt, 417 U. S. 600 (1974), holds counsel need not be appointed. Earlier this Term, in Kowalskiv. Tesmer, this Court, for prudential reasons, declined to reach the classification question posed by Michigan’s system for appellate review following a plea of guilty, guilty but mentally ill, or nolo contendere . Today, we reach the classification question and conclude that Halbert’s case is properly ranked with Doug

las rather than Ross . Accordingly, we hold that the Due Process and Equal Protection Clauses require the appo int

ment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.
I The Federal Constitution imposes on the States no obligation to provide appellate review of criminal convic

tions. McKanev. Durston, 153 U. S. 684, 687 (1894). Having provided such an avenue, however, a State may not “bolt the door to equal justice” to indigent defendants. Griffinv. Illinois, 351 U. S. 12, 24 (1956) (Frankfurter, J., concurring in judgment); see id. , at 23 (same) (“[W]hen a State deems it wise and just that convictions be suscepti

ble to review by an appellate co urt, it cannot by force of its exactions draw a line which precludes convicted indigent persons . . . from securing such . . . review.”). Griffin held that, when a State conditions an appeal from a conviction on the provision of a trial transcript, the State must fur

nish free transcripts to indigent defendants who seek to appeal. Id. , at 16–20 (plurality opinion). Douglasrelied

on Griffin ’s reasoning to hold that, in first appeals as of3 Cite as: 545 U. S. ____ (2005)

Opinion of the Court right, States must appoint counsel to represent indigent defendants. 372 U. S., at 357. Rossheld, however, that a State need not appoint counsel to aid a poor person in discretionary appeals to the State’s highest court, or in petitioning for review in this Court. 417 U. S., at 610–612, 615–618. Cases on appeal barriers encountered by persons unable to pay their own way, we have observed, “cannot be re

solved by resort to easy slogans or pigeonhole analysis.” M. L. B. v. S. L. J., 519 U. S. 102, 120 (1996) (internal quotation marks omitted). Ou r decisions in point reflect “both equal protection and due process concerns.” Ibid. “The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs,” while “[t]he due process con

cern homes in on the essential fairness of the stateordered proceedings.” Ibid.;see also Evittsv. Lucey, 469 U. S. 387, 405 (1985). Two considerations were key to our decision in Douglas that a State is required to appoint counsel for an indigent defendant’s first-tier appeal as of right. First, such an appeal entails an adjudication on the “merits.” 372 U. S., at 357. Second, first-tier review differs from subsequent appellate stages “at which the claims have once been presented by [appellate counsel] and passed upon by an appellate court.” Id. , at 356. Under the California system at issue in Douglas , the first-tier appellate court inde

pendently examined the record to determine whether to appoint counsel. Id. , at 355. When a defendant able to retain counsel pursued an appeal, the DouglasCourt observed, “the appellate court passe[d] on the merits of [the] case only after having the full benefit of written briefs and oral argument by counsel.” Id., at 356. In contrast, when a poor person appealed, “the appellate court [wa]s forced to prejudgethe merits [of the case] before it c[ould] even determ ine whether counsel should be4 HALBERT v. MICHIGAN

Opinion of the Court provided.” Ibid. In Ross , we explained why the rationale of Douglas did not extend to the appointment of counsel for an indigent seeking to pursue a second-tie r discretionary appeal to the North Carolina Supreme Court or, thereafter, certiorari review in this Court. The North Carolina Supreme Court, in common with this Court we perceived, does not sit as an error-correction instance. 417 U. S., at 615. Principal criteria for state high court review, we noted, included “whether the subject matter of the appeal has significant public interest, whether the cause involves legal principles of major significance to the jurisprudence of the State, [and] whether the decision below is in probable conflict” with the court’s precedent. Ibid. (internal quotation marks omitted). Further, we pointed out, a defendant who had already benefited from co unsel’s aid in a first-tier appeal as of right would have, “at the very least, a tran

script or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Ap

peals disposing of his case.” Ibid.
II A Michigan has a two-tier appellate system comprising the State Supreme Court and the intermediate Court of Ap

peals. The Michigan Supreme Court hears appeals by leave only. Mich. Comp. Laws Ann. §770.3(6) (West Supp. 2004). Prior to 1994, the Court of Appeals adjudicated appeals as of right from all criminal convictions. Bulger
, 462 Mich., at 503–504, 614 N. W. 2d, at 106–107. To reduce the workload of the Court of Appeals, a 1994 amendment to the Michigan Constitution changed the process for appeals following plea-based convictions. Id.
, at 504, 614 N. W. 2d, at 106–107. As amended, the State Constitution provides: “In every criminal prosecution, the5 Cite as: 545 U. S. ____ (2005)

Opinion of the Court accused shall have the right . . . to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court.” Mich. Const., Art. 1, §20. A defendant convicted by plea who seeks review in the Michigan Court of Appeals must now file an application for leave to appeal pursuant to Mich. Ct. Rule 7.205 (2005). In response, the Court of Appeals may, among other things, “grant or deny the application; enter a final decision; [or] grant other relief.” Rule 7.205(D)(2). If the court grants leave, “the case proceeds as an appeal of right.” Rule 7.205(D)(3). The parties agree that the Court of Appeals, in its orders denying properly filed applica

tions for leave, uniformly cites “lack of merit in the grounds presented” as the basis for its decision. See Tr. of Oral Arg. 21–22, 24, 39. Under Michigan law, most indigent defendants con

victed by plea must proceed pro sein seeking leave to appeal. Mich. Comp. Laws Ann. §770.3a (West 2000) provides, in relevant part, that a “defendant who pleads guilty, guilty but mentally ill, or nolo contendere shall nothave appellate counsel appointed for review of the defendant’s conviction or sentence,” except that: “(2) The trial court shall appoint appellate counsel for an indigent defendant [if the] prosecuting attorney seeks leave to appeal[, the] defendant’s sentence ex

ceeds the upper limit of the minimum sentence range of the applicable sentencing guidelines[, the] court of appeals or the supreme court grants the defendant’s application for leave to appeal[, or the] defendant seeks leave to appeal a conditional plea

. . . . “(3) The trial court may a ppoint appellate counsel [if the] defendant seeks leave to appeal a sentence based upon an alleged improper scoring of an offense vari

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

-6 HALBERT v. MICHIGAN

Opinion of the Court jected to the scoring or otherwise preserved the mat

ter for appeal[, and the] se ntence imposed by the court constitutes an upward departure from the upper limit of the minimum sentence range that the defendant al

leges should have been scored.” §770.3a(1)–(3).
In People v. Bulger , the Michigan Supreme Court con

sidered whether the Federal Co nstitution secures a right to appointed counsel for plea -convicted defendants seeking review in the Court of Appeals. 462 Mich., at 511, 614 N. W. 2d, at 110. Recognizing Douglas and Ross as the guiding decisions, 462 Mich., at 511–516, 614 N. W. 2d, at 110–112, the State Supreme Court concluded that ap

pointment of counsel is not required for several reasons: Court of Appeals review following plea-based convictions is by leave and is thus “discretionary,” id. , at 506–508, 519, 614 N. W. 2d, at 108, 113; “[p]lea proceedings are . . . shorter, simpler, and more routine than trials,” id. , at 517, 614 N. W. 2d, at 112; and by entering a plea, a defen

dant “accede[s] to the state’s fundamental interest in finality,” ibid. In Peoplev. Harris , the Michigan Supreme Court, adhering to Bulger , upheld the constitutionality of §770.3a. 470 Mich., at 882, 681 N. W. 2d, at 653.
B Petitioner Halbert pleaded nolo contendere to two counts of second-degree criminal sexual conduct. App. 23. Dur

ing Halbert’s plea colloquy, the trial court asked Halbert, “You understand if I accept your plea you are giving up or waiving any claim of an appeal as of right,” and Halbert answered, “Yes, sir.” Id. , at 22. The court then advised Halbert of certain instances in which, although the appeal would not be as of right, th e court nevertheless “must” or “may” appoint appellate counsel . The court did not tell Halbert, however, that it co uld not appoint counsel in any other circumstances, including Halbert’s own case:7 Cite as: 545 U. S. ____ (2005)

Opinion of the Court “THE COURT: You understand if I accept your plea and you are financially unable to retain a lawyer to represent you on appeal, the Court must appoint an attorney for you if the sentence I impose exceeds the sentencing guidelines or you seek leave to appeal a conditional plea or the prosecutor seeks leave to ap

peal or the Court of Appeals or Supreme Court grants you leave to appeal. Under those conditions I must appoint an attorney, do you understand that? “THE DEFENDANT: Yes, sir. “THE COURT: Further, if you are financially un

able to retain a lawyer to represent you on appeal, the Court may appoint an attorney for you if you allege an improper scoring of the sentencing guidelines, you ob

ject to the scoring at the time of the sentencing and the sentence I impose exceeds the sentencing guide

lines as you allege it should be scored. Under those conditions I may appoint an attorney for you, do you understand that? “THE DEFENDANT: Yes, sir.” Id. , at 22–23 (al

teration omitted). 1 At Halbert’s sentencing hearing, defense counsel re

quested that the sentences for the two counts run concur

rently, but urged no error in the determination of Hal

-

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1 Michigan provided Halbert with a for m titled “Notice of Rights After Sentencing (After Plea of Guilty/Nolo Contendere) and Request for Appointment of Attorney.” App. 46–50, 53–57. Resembling the advice conveyed to Halbert by the trial judge, the form described the circum

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

pressly state that, absent such circumstances, counsel would not be provided. As revised, Michigan’s notice form now states: “You are not entitled to have a lawyer appointed at public expense to assist you in filing an application for leave to appe al

. . . . ” Advice Concerning Right To Appeal After Plea of Guilty/Nolo Contendere (rev. June 2004), available at http://court s.michigan.gov/scao/courtforms/appeals/cc265b. pdf (all Internet materials as visited June 21, 2005, and available in Clerk of Court’s case file).8 HALBERT v. MICHIGAN

Opinion of the Court bert’s exposure under the Michigan sentencing guidelines. Id. , at 33. The trial court set Halbert’s sentences to run consecutively. Id. , at 35. Halbert submitted a handwrit

ten motion to withdraw his plea the day after sentencing. Denying the motion, the trial court stated that Halbert’s “proper remedy is to appealto the Michigan Court of Appeals.” Id. , at 43. Twice thereafter and to no avail, Halbert asked the trial court to appoint counsel to help him prepare an applica

tion for leave to appeal to the intermediate appellate court. He submitted his initial request on a form provided by the State. Id. , at 46–50, 53–57. The trial court denied the request. Id. , at 44–45, 51–52. Halbert next sent the trial court a letter and acco mpanying motion, again seek

ing appointed counsel. Id. , at 58. Halbert stated that his sentence had been misscored and that he needed the aid of counsel to preserve the issu e before undertaking an ap

peal. Id. , at 58, 61–62. Halbert also related that he had “required special education due to learning disabilities,” id. , at 61, and was “mentally impaired,” id. , at 62. To prepare his pro se filings, he noted, he was obliged to rely on the assistance of fellow inmates. Id. , at 61. The trial court denied Halbert’s motion; citing Bulger , the court stated that Halbert “does not have a constitutional . . . right to appointment of appellate counsel to pursue a discretionary appeal.” App. 64. Again using a form supplied by the State and acting pro
se , Halbert filed an application for leave to appeal. Id. , at 66–71. He asserted claims of sentencing error and ineffec

tive assistance of counsel, id. , at 68, and sought, inter alia
, remand for appointment of appellate counsel and resen

tencing, id. , at 71. In a standard form order, the Court of Appeals denied Halbert’s applic ation “for lack of merit in the grounds presented.” Id. , at 72.The State Supreme Court, dividing 5 to 2, denied Halbert’s application for leave to appeal to that court. TheCite as: 545 U. S. ____ (2005) 9

Opinion of the Court dissenting justices would have provided for the appoint

ment of counsel, and would have allowed counsel to file a supplemental leave application prior to the Court of Ap

peals’ reconsideration of Halbert’s pleas. Id. , at 84. We granted certiorari, 543 U. S. ___ (2005), to consider whether the denial of appointed counsel to Halbert vio

lated the Fourteenth Amendment. We now vacate the judgment of the Michigan Court of Appeals.
III Petitioner Halbert’s case is framed by two prior decisions of this Court concerning state-funded appellate counsel, Douglasand Ross . The question before us is essentially one of classification: With which of those decisions should the instant case be aligned? 2We hold that Douglas pro

vides the controlling instruction. Two aspects of the Michigan Court of Appeals’ process following plea-based convictions lead us to that co nclusion. First, in determin

ing how to dispose of an application for leave to appeal, Michigan’s intermediate appellate court looks to the mer

its of the claims made in the application. Second, indigent defendants pursuing first-tier review in the Court of Ap

peals are generally ill equipped to represent themselves. A defendant who pleads guilty or nolo contendere in a Michigan court does not thereby forfeit all opportunity for appellate review. Although he relinquishes access to an appeal as of right, he is entitled to apply for leave to ap

peal, and that entitlement is officially conveyed to him. See supra , at 4–5; Mich. Ct. Rule 6.425(E)(2)(a) (2005)

——————

2 The question at hand, all Members of the Court agree, is whether this case should be bracketed with Douglasv. California, 372 U. S. 353 (1963), because appointed counsel is sought for initial review before an intermediate appellate court, or with Rossv. Moffitt, 417 U. S. 600 (1974), because a plea-convicted defendant must file an application for leave to appeal. See post , at 4 (T HOMAS , J., dissenting) (“Michigan’s system bears some similarity to the state systems at issue in both Douglasand Ross .”).10 HALBERT v. MICHIGAN

Opinion of the Court (“[T]he defendant is entitled tofile an application for leave to appeal.”); see also AdviceConcerning Right To Appeal, ¶1, supra, at 7, n. 1 (“You are entitled to file an application for leave to appeal with the Co urt of Appeals.”). Of critical importance, the tribunal to which he addresses his appli

cation, the Michigan Court of Appeals, unlike the Michi

gan Supreme Court, sits as an error-correction instance. 3 The Court of Appeals may respond to a leave application in a number of ways. It “may grant or deny the applica

tion; enter a final decision; grant other relief; request additional material from the record; or require a certified concise statement of proceedings and facts from the court . . . whose order is being appealed.” Mich. Ct. Rule 7.205(D)(2) (2005). When the court denies leave using the stock phrase “for lack of merit in the grounds presented,” its disposition may not be equivalent to a “final decision” on the merits, i.e. , the disposition may simply signal that the court found the matters asserted unworthy of the expenditure of further judicial resources. But the court’s response to the leave application by any of the specified alternatives—including denialof leave—necessarily en

tails some evaluation of the merits of the applicant’s claims. Michigan urges that review in the Court of Appeals following a plea-based conviction is as “discretionary” as review in the Michigan Supreme Court because both

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3 Both the majority and the dissent in People v. Bulger , 462 Mich. 495, 614 N. W. 2d 103 (2000), described the State’s intermediate appellate court’s function as error correction. Compare id. , at 516–518, 614 N. W. 2d, at 112–113 (in the majority’s view, the Court of Appeals could perform its review function, despite the defendant’s lack of representation, because plea-convicted defendants have ample aid for preservation of their clai ms in the trial court an d ineffective assistance of counsel should be readily apparent to the Court of Appeals from the record), with id. , at 543, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting) (“[T]he function of our Court of Appeals is reviewing the merits and correcting errors made by the lower courts.”).Cite as: 545 U. S. ____ (2005) 11

Opinion of the Court require an application for leave to appeal. See Bulger , 462 Mich., at 506–508, 519, 614 N. W. 2d, at 108, 113; Brief for Respondent 31–34. 4Therefore, Michigan maintains, Ross is dispositive of this case. The Court in Ross , however, recognized that leave-grantin g determinations by North Carolina’s Supreme Court turned on considerations other than the commission of error by a lower court, e.g. , the involvement of a matter of “significant public interest.” See supra , at 4. Michigan’s Supreme Court, too, sits not to correct errors in individual case s, but to decide matters of larger public import. See Mich. Ct. Rule 7.302(B)(2)–(3) (2005) (criteria for granting leave to appeal to the Michi

gan Supreme Court include whether a case presents an “issue [of] significant public interest” or “involves legal principles of major significance to the state’s jurispru

dence”); Great Lakes Realty Corp. v. Peters , 336 Mich. 325, 328–329, 57 N. W. 2d 901, 903 (1953) (equating denial of an application for leave to appeal to the Michigan Su

preme Court with denial of a petition for writ of certiorari in this Court); see also this Court’s Rule 10 (considerations guiding decision whether to grant certiorari). By contrast,the Michigan Court of Appeals, because it is an errorcorrection instance, is guided in responding to leave toappeal applications by the merits of the particular defendant’s claims, not by the general importance of the ques

tions presented. Whether formally categorized as the decision of an

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4 The Bulger opinions nowhere describe the discretion exercised by the Michigan Court of Appeals as so unconstrained that it may “deny leave [to appeal] for any reason, or for no reason at all.” Post , at 10 (T HOMAS , J., dissenting). Compare Bulger , 462 Mich., at 511, 614 N. W. 2d, at 110 (appeal to intermediate court is di scretionary because a defendant must “obtai[n] leave”); id. , at 506–508, 519, 614 N. W. 2d, at 108, 113, with id.
, at 542–543, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting) (Court ofAppeals may deny leave to appeal where error is not outcomedeterminative).12 HALBERT v. MICHIGAN

Opinion of the Court appeal or the disposal of a le ave 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 Rossemphasized, a defendant seeking State Supreme Court review following a first-tier appeal as of right earlier had the assistance of appellate counsel. The attorneyappointed to serve at the intermediate appellate court level will have reviewed the trial court record, researched the legal issues, and pre

pared a brief reflecting that review and research. 417 U. S., at 615. The defendantseeking second-tier review may also be armed with an opinion of the intermediate appellate court addressing the issues counsel raised. A first-tier review applicant, forced to act pro se , will face a record unreviewed by appellate counsel, and will be equipped with no attorney’s brief prepared for, or reasoned opinion by, a court of review. The Bulger Court concluded that “[a] pro se defendant seeking discretionary review” in the Court of Appeals is adequately armed because he “will have the benefit of a transcript, trial counsel’s framing of the issues in [a] motion to withdraw, and the trial court’s ruling on the motion.” 462 Mich., at 518, 614 N. W. 2d, at 113; see also Mich. Ct. Rule 6.005(H)(4) (2005) (trial counsel must file “postconviction motions the lawyer deems appropriate, including motions . . . to with draw plea, or for resentenc

ing”); post , at 11 (T HOMAS , J., dissenting). 5 But we held in Swensonv. Bosler, 386 U. S. 258 (1967) (per curiam) , that

——————

5 This assumes that trial counsel will recognize, in a postconviction motion, any issues appropriate for preservation for appellate review. A lawyer may not, however, perceive his own errors or the need for such a motion. Defense counsel here, for example, whose performance Halbert alleged to be ineffective, apparently did not assist Halbert in preparing and filing his motion to withdraw his plea. See supra , at 8.13 Cite as: 545 U. S. ____ (2005)

Opinion of the Court comparable materials prepared by trial counsel are no substitute for an appellate lawyer’s aid. There, the Missouri court reviewing an indigent’s post-trial appeal had before it a transcript plus trial counsel’s “notice of appeal and . . . motion for new trial which specifically designated the issues which could be considered on direct appeal.” Id. , at 259. The absence of counsel in these circumstances, Bosler held, “violated [the defendant’s] Fourteenth Amendment rights, as defined in Douglas .” Ibid. Adhering to Douglas , we explained that “[t]he assistance of appellate counsel in preparing and submitting a brief to the appellate court which defines the legal principles upon which the claims of error are based and which designates and interprets the relevant portions of the [record] may well be of substantial benefit to the defendant [and] may not be denied . . . solely because of his indigency.” 386 U. S., at 259. Although Bosler involved a post-trial rather than post-plea appeal, the Court recognized that a transcript and motion by trial counsel are not adequate stand-ins for an appellate lawyer’s review of the record and legal research. Without guides keyed to a court of review, a pro se applicant’s entitlement to seek leave to appeal to Michigan’s intermediate court may be more formal than real. Persons in Halbert’s situation are particularly handi

capped as self-representatives. As recounted earlier this Term, “[a]pproximately 70% of indigent defendants repre

sented by appointed counsel plead guilty, and 70% of those convicted are incarcerated.” Kowalski , 543 U. S., at ___ (slip op., at 5) (G INSBURG , J., dissenting). “[Sixty-eight percent] of the state prison populatio[n] did not complete high school, and many lack th e most basic literacy skills.” Id., at ___ (slip op., at 6) (citation omitted). “[S]even out of ten inmates fall in the lowest two out of five levels of literacy—marked by an inability to do such basic tasks as write a brief letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made14HALBERT v. MICHIGAN

Opinion of the Court in a lengthy newspaper article.” Ibid. Many, Halbert among them, have learning disabilities and mental im

pairments. See U. S. Dept. of Justice, Bureau of Justice Statistics, A. Beck & L. Maruschak, Mental Health Treatment in State Prisons, 2000, pp. 3–4 (July 2001), http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtsp00.pdf (identi

fying as mentally ill some 16% of state prisoners and noting that 10% receive psychotropic medication). Navigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Halbert, who have little education, learning disabilities, and mental impairments. See Evitts , 469 U. S., at 393 (“[T]he services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consid

eration on the merits.”); Gideon v. Wainwright , 372 U. S. 335, 345 (1963) (“Even the intelligent and educated lay

man has small and sometimes no skill in the science of law.” (quoting Powell v. Alabama , 287 U. S. 45, 69 (1932))). Appeals by defendants convicted on their pleas may involve “myriad and often complicated” substantive issues, Kowalski , 543 U. S., at ___ (slip op., at 10) (G INSBURG , J., dissenting), and may be “no less complex than other appeals,” id. , at ___ (slip op., at 6) (same). One who pleads guilty or nolo contendere may still raise on appeal “constitutional defects that are irrelevant to his fac

tual guilt, double jeopardy claims requiring no further factual record, jurisdictional defects, challenges to the sufficiency of the evidence at the preliminary exami

nation, preserved entrapment claims, mental compe

tency claims, factual basis claims, claims that the state had no right to proceed in the first place, includ

ing claims that a defendant was charged under an in

applicable statute, and claims of ineffective assistance15 Cite as: 545 U. S. ____ (2005)

Opinion of the Court
of counsel.” Ibid. (quoting Bulger , 462 Mich., at 561, 614 N. W. 2d, at 133–134 (Cavanagh, J., dissenting) (citations omitted)). Michigan’s very procedures for seeking leave to appeal after sentencing on a plea, moreover, may intimidate the uncounseled. See Kowalski , 543 U. S., at ___ (slip op., at 6–7) (G INSBURG , J., dissenting). Mich. Ct. Rule 7.205(A) (2005) requires the applicant to file for leave to appeal within 21 days after the trial court’s entry of judgment. “The defendant must submit five copies of the application ‘stating the date and nature of the judgment or order appealed from; concisely reci ting the appellant’s allega

tions of error and the relief sought; [and] setting forth a concise argument . . . in support of the appellant’s position on each issue.’ ” Kowalski , 543 U. S., at ___ (slip op., at 7) (G INSBURG , J., dissenting) (quoting Rule 7.205(B)(1)). Michigan does provide “a three-page form application accompanied by two pages of instructions for defendants seeking leave to appeal after sentencing on a . . . plea. But th[e] form is unlikely to provide adequate aid to an indi

gent and poorly educated defendant.” Ibid. It directs the defendant to provide information such as “charge code(s), MCL citation/PACC Code,” state the issues and facts relevant to the appeal, and “ ‘state the law that supports your position and explain how the law applies to the facts of your case.’ ” Ibid. (some internal quotation marks omit

ted) (quoting Application for Leave To Appeal After Sen

tencing on Plea of Guilty or Nolo Contendere (rev. Oct. 2003), http://courts.michigan.gov/scao/courtforms/appeals/ cc405.pdf). “This last task would not be onerous for an applicant familiar with law school examinations, but it is a tall order for a defendant of marginal literacy.” Kowalski , 543 U. S., at ___ (slip op., at 7) (G INSBURG , J., dissenting). While the State has a legitimate interest in reducing the16HALBERT v. MICHIGAN

Opinion of the Court workload of its judiciary, providing indigents with appel

late counsel will yield applications easier to comprehend. 6 Michigan’s Court of Appeals would still have recourse to summary denials of leave applications in cases not war

ranting further review. And when a defendant’s case presents no genuinely arguable issue, appointed counsel may so inform the court. See Anders v. California , 386 U. S. 738, 744 (1967) (“[I]f counsel finds [the] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw,” filing “a brief referring to anything in the record that might arguably su pport the appeal.”); Tr. of Oral Arg. 27 (“[I]n a significant percentage of the cases . . .[,] after reviewing the case, the appellate counsel then concludes that there is no merit . . . , at which point then either a motion to withdraw may be filed or . . . the Michigan equivalen[t] of an Anders brief.”). Michigan contends that, even if Halbert had a constitu

tionally guaranteed right to appointed counsel for firstlevel appellate review, he waived that right by entering a plea of nolo contendere . We disagree. At the time he entered his plea, Halbert, in common with other defen

dants convicted on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo. 7More

-

——————

6 “No one questions,” the Bulger Court stated, “that the appointment of appellate counsel at state expense would be more efficient and helpful not only to defendants, but also to the appellate courts.” 462 Mich., at 520, 614 N. W. 2d, at 114.

7 Assuming, as J USTICE T HOMAS suggests, that whether Michigan law conferred on Halbert a post-plea right to appointed appellate counsel is irrelevant to whether Halbert waived a federal constitutional right to such counsel, post , at 16–17, the remainder of the dissent’s argument slips from my grasp, see post , at 17–18. No conditional waiver—“on[e] in which a defendant agrees that, if hehas . . . a right, he waives it,” post , at 17—is at issue here. Further, nothing in Halbert’s plea collo

quy indicates that he waived an “unsettled,” but assumed, right to the assistance of appointed appellate counsel, post-plea. See post , at 17–18.17 Cite as: 545 U. S. ____ (2005)

Opinion of the Court over, as earlier observed, the trial court did not tell Hal

bert, simply and directly, that in his case, there would be no access to appointed counsel. See supra , at 6–7; cf. Iowa

v. Tovar, 541 U. S. 77, 81 (2004) (“Waiver of the right to counsel, as of constitutional rights in the criminal process generally, must be a ‘knowing, intelligent ac[t] done with sufficient awareness of the relevant circumstances.’ ” (quoting Bradyv. United States, 397 U. S. 742, 748 (1970))). 8
* * * For the reasons stated, we vacate the judgment of the Michigan Court of Appeals and remand the case for fur

ther proceedings not inconsistent with this opinion.

It is so ordered.

——————

8 We are unpersuaded by the suggestion that, because a defendant may be able to waive his right to appeal entirely, Michigan can conse

quently exact from him a waiver of the right to government-funded appellate counsel. See Tr. of Oral Arg. 14. Many legal rights are “presumptively waivable,” post , at 14 (T HOMAS , J., dissenting), and if Michigan were to require defendants to waive all forms of appeal as a condition of entering a plea, that condition would operate against moneyed and impoverished defendants alike. A required waiver of the right to appointed counsel’s assistance when applying for leave to appeal to the Michigan Court of Appeals, however, would accomplish the very result worked by Mich. Comp. Laws Ann. §770.3a (West 2000): It would leave indigents without acce ss to counsel in that narrow range of circumstances in which, our decisi ons hold, the State must affirma

tively ensure that poor defendants receive the legal assistance neces

sary to provide meaningful access to the judicial system. See Douglas
, 372 U. S., at 357–358; M. L. B. , 519 U. S., at 110–113; cf. Griffinv. Illinois, 351 U. S. 12, 23 (1956) (Frankfurter, J., concurring in judgment) (ordinarily, “a State need not equalize economic conditions” between criminal defendants of lesser and greater wealth)._________________

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

T HOMAS , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 03–10198

ANTONIO DWAYNE HALBERT, PETITIONER v. MICHIGAN

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN [June 23, 2005]
J USTICE T HOMAS , with whom J USTICE S CALIA joins, and with whom T HE C HIEF J USTICE joins as to all but Part III– B–3, dissenting. Petitioner Antonio Halbert pleaded no contest to charges that he sexually a ssaulted his stepdaughter andanother 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. It also ignores that, even if there is a right to counsel in the circumstances at issue, the right is waivable and was validly waived here. I re

spectfully dissent.
I To understand why the Court’s holding is an unwar

ranted extension of our precedents, it is necessary first to understand the limits that Michigan places on the provi

sion of court-appointed counsel for defendants who plead guilty or no contest. Before 1994, Michigan afforded all criminal defendants the right toappeal their convictions to the Michigan Court of Appeals. By the early 1990’s,2 HALBERT v. MICHIGAN

T HOMAS , J., dissenting however, the Michigan Court of Appeals had a backlog of thousands of cases awaiting decision, nearly a third of which were appeals by defendants who had pleaded guilty or no contest. Peoplev. Bulger , 462 Mich. 495, 504, 614 N. W. 2d 103, 107 (2000). To reduce this backlog, Michi

gan voters amended the Michigan Constitution in 1994 to provide that “[i]n every crimi nal prosecution, the accused shall . . . have an appeal as a matter of right, except [that] . . . an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court.” Mich. Const., Art. 1, §20; Bulger
, supra , at 504, 614 N. W. 2d, at 107. This constitutional amendment created a two-track sys

tem for Michigan defendants: The Michigan Court of Appeals must hear the appeals of those who dispute their guilt, while it may elect to hear the appeals of those who concede or do not contest their guilt of the substantive crime. In 1999, the Michigan Legislature enacted the statute at issue here. It provides that, in general, a “defendant who pleads guilty, guilty but mentally ill, or nolo contendere shall not have appellate counsel appointed for review of the defendant’s conviction orsentence.” Mich. Comp. Laws Ann. §770.3a(1) (West 2000). Defendants who plead guilty or no contest do not, however, invariably lose the right to counsel on appeal; th e statute contains exceptions to the general rule. The trialcourt must appoint appellate counsel for plea-convicted defendants if the State seeks leave to appeal, the defendant’s sentence exceeds the upper limit of the applicable minimum guidelines range, or the defendant seeks leave to appeal a conditional plea. §770.3a(2). Further, the trial court may appoint appellate counsel for plea-convicted de fendants who seek leave to appeal certain sentencing errors. §770.3a(3). Finally, if the Court of Appeals grants leave to appeal, “the case proceeds as an appeal of right,” Mich. Ct. Rule 7.205(D)(3) (2005), and the plea-convicted defendant is entitled to3 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting appointed counsel, Mich. Comp. Laws Ann. §770.3a(2)(c). Thus, plea-convicted defendants lack appellate counsel only in certain types of cases, and only then when they are seeking leave to appeal.
II The majority nevertheless holds that Michigan’s systemis constitutionally inadequate. It finds that all pleaconvicted indigent defendants have the right to appellate counsel when seeking leave to appeal. The majority does not say where in the Constitution that right is located— the Due Process Clause, the Equal Protection Clause, or some purported confluence of the two. Ante , at 2–3. Nor does the majority attempt to anchor its holding in the history of those Clauses. M. L. B. v. S. L. J., 519 U. S. 102, 131, 133, 138 (1996) (T HOMAS , J., dissenting). Nor does the majority even attempt to ground its holding in the entirety of this Court’s jurisprudence, which does not require paid appellate assistance for indigent criminal defendants. Id.
, at 131–138. The majority ignores the bulk of that juris

prudence and leaves those arguments unanswered. Instead, the majority pins its hopes on a single case: Douglasv. California, 372 U. S. 353 (1963). Douglas , how

ever, does not support extending the right to counsel to any form of discretionary review, as Rossv. Moffitt, 417 U. S. 600 (1974), and later cases make clear. Moreover, Michigan has not engaged in the sort of invidious dis

crimination against indigent defendants that Douglas condemns. Michigan has done no more than recognize the undeniable difference between defendants who plead guilty and those who maintain their innocence, in an attempt to divert resources fr om largely frivolous appeals to more meritorious ones. The majority substitutes its own policy preference for that of Michigan voters, and it does so based on an untenable reading of Douglas

.4 HALBERT v. MICHIGAN

T HOMAS , J., dissenting
A In Douglas , California granted an initial appeal as of right to all convicted criminal defendants. 372 U. S., at 356. However, the California District Court of Appeal appointed counsel for indigentdefendants only after de

termining whether counsel woul d be useful to the defen

dant or the court. Ibid. Thus the California appellate court was “forced to prejudge the merits” of indigent de

fendants’ appeals, while it judged the merits of other defendants’ appeals only after briefing and oral argument. Ibid

.In previous cases, this Court had considered stateimposed conditions like transcript and filing fees that prevented indigent criminal defendants from obtaining any appellate review. Ross , supra , at 606–607 (discussing Griffinv. Illinois, 351 U. S. 12 (1956), and its progeny). By contrast, in Douglas , California provided appellate review to all criminal defendants, but it did not provide a state sub

sidy for indigent defendants whose claims appeared unlikely to benefit from counsel’s assistance. This Court neverthe

less held that when States provide a first appeal as of right, they must supply indigent defendants with counsel. Ross , supra , at 607. In Ross , however, this Court declined to extend Douglas ’ right to counsel beyond initial appeals as of right. States need no t appoint counsel for indigent defendants who seek discreti onary review in a State’s highest court or this Court. Ross, supra, at 616–618. Michigan’s system bears somesimilarity to the state systems at issue in both Douglasand Ross . Like the defendant in Douglas , Halbert requests appointed counsel for an initial appeal before an intermediate appellate court. But like the defendant in Ross , Halbert requests appointed counsel for an appeal that is discretionary, not as of right. Crucially, however, Douglasnoted that its decision extended only to initial appeals as of right—and later cases have repeatedly reaffirmed that understand

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

T HOMAS , J., dissenting ing. 1This Court has never re quired States to appoint counsel for discretionary review. Ross , supra , at 610; Murrayv. Giarratano, 492 U. S. 1, 10–11 (1989); see also Pennsylvania v. Finley, 481 U. S. 551, 555 (1987). And an appeal permitted only “by leav e of the court,” Mich. Const., Art. 1, §20, is discretionary—as the Michigan Supreme Court has recognized, Bulger , 462 Mich., at 519, 614 N. W. 2d, at 113; id. , at 542–542, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting). Neither Douglasnor 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 Douglasdoes not support extending the right to counsel to this particular form of discretionary review. Admittedly, the precise rationale for the Griffin/Douglasline of cases has never been made explicit. Ross , supra , at 608–609. Those cases, however, have a common theme. States may not impose financial barriers that preclude indigent defendants from securing appellate review altogether. Griffin , 351 U. S., at 17–18 (plurality opinion); id. , at 22 (Frankfurter, J., con

curring in judgment); Burnsv. Ohio, 360 U. S. 252, 258 (1959); Smithv. Bennett, 365 U. S. 708, 713–714 (1961). Nor may States create “ ‘unreasoned distinctions’ ” among defendants, M. L. B. , supra , at 111 (quoting Rinaldiv. Yeager, 384 U. S. 305, 310 (1966)); Douglas
, supra , at 356;

——————

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

tended only to initial appeals as of right”); Evittsv. Lucey, 469 U. S. 387, 394 (1985) ( Douglas“is limited to the first appeal as of right”); Pennsyl

vania v. Finley, 481 U. S. 551, 555 (1987) (“[T]he right to appointed counsel extends to the first appeal of right, and no further”); Colemanv. Thompson, 501 U. S. 722, 755 (1991) (“ [Douglas] establish[es] that an indigent criminal defendant has a right to appointed counsel in his first appeal as of right in state court”); see also Wainwrightv. Torna, 455 U. S. 586, 587 (1982) (per curiam) (“[Ross] held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in this Court”).6 HALBERT v. MICHIGAN

T HOMAS , J., dissenting Griffin
, supra , at 22–23 (Frankfurter, J., concurring in judgment), that “arbitrarily cut off appeal rights for indi

gents while leaving open avenues of appeals for more afflu

ent persons,” Ross , 417 U. S., at 607. Far from being an “arbitrary” or “unreasoned” distinc

tion, Michigan’s differentiation between defendants con

victed at trial and defendants convicted by plea is sensible. First and perhaps foremost, the danger of wrongful convic

tions is less significant than in Douglas . In Douglas
, California preliminarily denied counsel to all indigent defendants, regardless of whether they maintained their innocence at trial or concededtheir guilt by plea. Here, Michigan preliminarily denies paid counsel only to indi

gent defendants who admit or do not contest their guilt. And because a defendant who pleads guilty “may not thereafter raise independent claims relating to the depri

vation of constitutional righ ts that occurred prior to the entry of the guilty plea,” Tollettv. Henderson, 411 U. S. 258, 267 (1973), the potential issues that can be raised on appeal are more limited, Bulger , 462 Mich., at 517, and

n. 7, 614 N. W. 2d, at 112–113, and n. 7. Further, as the Michigan Supreme Court has explained, “[p]lea proceedings are also shorter, simpler, and more routine than trials; the record most often consists of the ‘factual basis’ for the plea that is provided to the trial court. In contrast with trials, less danger exists in plea cases that the record will be so unclear, or the errors so hidden, that the defendant’s appeal will be reduced to a meaningless ritual.” Id. , at 517, 614 N. W. 2d, at 112. When a defendant pleads in open court, there is less need for counsel to develop the re cord and refine claims to present to an appellate court. These are all “ ‘[r]easoned distinctions’ ” between defendants convicted by trial and those convicted by their own plea. M. L. B. , 519 U. S., atCite as: 545 U. S. ____ (2005) 7

T HOMAS , J., dissenting 111 (quoting Rinaldi, supra , at 310). The brief history of Michigan’s system confirms this. When Michigan voters amended the State Constitution to establish the current system, roughly 13,000 civil and criminal appeals per year clogged the Michigan Court of Appeals’ docket. Of those, nearly a third were appeals by criminal defendants who had pleaded guilty or no contest. Even though at the time plea-convicted defendants were appointed paid appellate counsel, few of these defendants were granted relief on appeal. Simply put, Michigan’s bar and bench were devoting a substantial portion of their scarce resources to thousands of cases with little practical effect. Reallocating resource s was not “invidious discrimi

nation” against criminal defendants, indigent or other

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

ted). It was an attempt to ensure “that frivolous appeals [were] not subsidized and public moneys not needlessly spent.” Griffin
, supra , at 24 (Frankfurter, J., concurring in judgment). Today’s decision will therefore do no favors for indigent defendants in Michigan—at least, indigent defendants with nonfrivolous claims. While defendants who admit their guilt will receive more attention, defendants who maintain their innocence will receive less. Even some defendants who plead guilty will feel the pinch, because plea-convicted defendants are entitled to counsel in pre

paring their leave applications if, for example, they appeal from conditional pleas, Mich. Comp. Laws Ann. §770.3a(2)(d) (2005), or their sentences exceed the applica

ble guidelines ranges, §770.3a(2)(b). And any pleaconvicted defendant granted leave to appeal is entitled to appointed counsel. §770.3a(2)(c). Holding Michigan’s resources constant (since wehave no control over the State’s bar or budget), the majo rity’s policy choice to redis

tribute the State’s limited resources only harms those most likely to have worthwhile claims—to say nothing of8 HALBERT v. MICHIGAN

T HOMAS , J., dissenting “the cost of enabling courts and prosecutors to respond to the ‘over-lawyering’ of minor cases.” Alabama v. Shelton, 535 U. S. 654, 681 (2002) (S CALIA, J., dissenting); cf. Rom

pillav. Beard
, ante, at 8 (KENNEDY , J., dissenting). Then, too, Michigan is under no constitutional obligation to pro

vide appeals for plea-convicted defendants. Ante , at 2 (citing McKanev. Durston, 153 U. S. 684 (1894)). Michigan may decline to provide an appellate process altogether (since the Court’s ruling increases the cost of having a system of appellate review). Surely plea-convicted defen

dants would prefer appeals with limited access to counsel than no appeals at all.
B The majority does not attempt to demonstrate that Michigan’s system is the sort of “unreasoned” discrimina

tion against indigent defendants Douglasprohibits. In

stead, the majority says that this case is earmarked by two considerations that were al so key to this Court’s deci

sion in Douglas:First, when a plea-convicted defendant seeks leave to appeal, the Michigan Court of Appeals adjudicates the leave application with reference to the merits. Ante , at 9. Second, the plea-convicted defendant who seeks leave to appeal is “generally ill equipped to represent [himself].” Ibid . Neither of these arguments is correct.
1 The majority reasons that in adjudicating an application for leave to appeal, the Michigan Court of Appeals “is guided . . . by the merits of the particular defendant’s claims.” Ante , at 11. The distinction that Douglasdrew, however, was not between appellate systems that involve “some evaluation of the merits of the applicant’s claims” and those that do not, ante , at 10, but instead between discretionary and mandatory review. Supra , at 4–6. Of9 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting
course the California intermediate courts in Douglas evaluated cases on their merits: These courts were hearing appeals as of right. The Michigan Court of Appeals probably does consider “the merits of the applicant’s claims” in exercising its discretion; so do other cou rts of discretionary review, including this Court. For in stance, this Court would be unlikely to grant a case to announce a rule that could not alter the case’s disposition, or to correct an error that had not affected the proceedings below. This Court often considers whether errors ar e worth correcting in both plenary and summary dispositions. None of this convertsdiscretionary, error-noticing review into mandatory, errorcorrecting review. Likewise, the Michigan Court of Appeals is not required to hear particular cases or correct particular errors. It may elect to hear cases when it finds the trial court’s disposition questionable or dubious. Or it may elect to hear cases when it finds the trial court’s disposition im

portant or interesting. For all we know, it may (and probably does) consider both. Regardless, the Court of Appeals’ decision to grant re view remains “discretionary,” because it does not depend on “whether there has been ‘a correct adjudication of guilt’ in every individual case.” Ross , 417 U. S., at 615. Like other courts of discretionary review, the Court of Appeal s may opt to correct errors, ante , at 10–11, and n. 3—but it is not compelled to do so. The majority appears to dispute that review before the Michigan Court of Appeals is truly discretionary, ante , at 10–11, and n. 4, but it provides no support for its specula

tion. Unlike the California District Court of Appeal in Douglas , the Michigan Court of Appeals has discretion in deciding whether to grant leave applications. See Bulger
, 462 Mich., at 519, 614 N. W. 2d, at 113 (describing the issue as “whether a defendant is entitled under the federal constitution to appointed counsel in a first discretionary10HALBERT v. MICHIGAN

T HOMAS , J., dissenting appeal from a plea-based conviction” (emphasis in origi

nal)); id. , at 542–543, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting) (“Nothing in our court rules or statute pre

cludes the Court of Appeals from denying leave even though it may believe that th e trial court’s decision was incorrect”). So far as we can tell, the Michigan Court of Appeals’ decision to grant ordeny a leave application is not constrained by any state constitutional provision, statute, or court rule. The Michigan Court of Appeals may deny leave for any reason, or for no reason at all. The majority’s holding suggests that Michigan’s system would pass constitutional muster if the Court of Appeals recited “lack of importance in the grounds presented” as its ground for denying leave, ante , at 10–12, or if its deci

sional criteria were set forth ina statute, judicial decision, or court rule, ibid . Yet the relevant inquiry under Douglas and Rossis whether the Court of Appeals is obliged to review the case—not whether the Court of Appeals must or does offer a particular ground for declining review.
2The majority also asserts that, without counsel, pleaconvicted defendants who seek leave to appeal are “gener

ally ill equipped to represent themselves.” Ante , at 9. This overgeneralizes Douglas ’ rationale. The Douglas Court was concerned with the “barren record” that would follow a defendant on appeal. 372 U. S., at 356. For “where the record [was] unclear or the errors [were] hid

den,” the appellate court wo uld have difficulty detecting errors without the assistance of counsel. Id. , at 358. This is in part why this Court in Rossdid not extend the right to counsel to discretio nary review before the North Carolina Supreme Court. Befo re that court, a defendant applying for leave had “a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an11 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting opinion by the Court of Appeals disposing of his case.” Ross , 417 U. S., at 615. Coupled with whatever the defen

dant might submit on his own, these materials provided the State Supreme Court “with an adequate basis for its decision to grant or deny review.” Ibid. The majority does not argue that indigent plea-convicted defendants who file leave applications do so with a “barren record,” Douglas
, supra , at 356, or that the Michigan Court of Appeals lacks an “adequate basis” for reviewing their leave applications, Ross , supra , at 615. The Michi

gan Supreme Court put it best: “[Michigan’s] court rules require trial counsel to assist the defendant in organizing and presenting to the trial court any potential appe llate issues that warrant preservation. Accordingly, a pro se defendant seeking discretionary review will have the benefit of a tran

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

tion to withdraw, and the trial court’s ruling on the motion.” Bulger
, supra , at 518, 614 N. W. 2d, at 113; see also Mich. Ct. Rule 6.005(H)(4) (2005).
As in Ross , these materials aid both the plea-convicted defendant and the Michigan Court of Appeals in identify

ing claims appropriate for plenary consideration. A pleaconvicted defendant does not fa ce a record unreviewed by counsel, and he does not lack any reasoned treatment of his claims. And, again, plea proceedings tend to be more transparent than trials, supra , at 6; “less danger exists in plea cases that the record will be so unclear, or the errors so hidden,” Bulger
, supra , at 517, 614 N. W. 2d, at 112, that the Michigan Court of Appeals will be unable to identify issues that deserve further examination on ap

peal. After all, the Michigan Court of Appeals need know only enough to decide whether to grant further review. Should it elect to do so, Michigan law requires the ap

pointment of counsel to aid in the appeal. Mich. Comp.12 HALBERT v. MICHIGAN

T HOMAS , J., dissenting Laws Ann. §770.3a(2)(c) (2005). The majority’s unwillingness to confront the distinctions between Michigan’s system and the California system at issue in Douglasis made clear by its reliance on Swenson

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

. Swensoncon

sidered whether indigent defendants convicted at trial have a right to appointed counsel during their initial appeal as of right, even if the St ate provides indigent defendants with a trial transcript and a motion for a new trial prepared by trial counsel. Id. , at 258–259. But Douglashad already answered that question, as this Court summarily declared: “[Appointed counsel] may not be denied to a criminal defen

dant, solely because of his indigency, on the only appeal which the State affords him as a matter of right .” 386 U. S., at 259 (emphasis added). Of course, Michigan’s entire argument is that there is a “[r]easoned distinction” between defendants convicted following trials and pleas, as there is between appeals as of right and discretionary review. M. L. B. , 519 U. S., at 111 (citation omitted); Brief for Respondent 28. This Court’s brief, per curiamopinion in Swenson did not consider, much less address, these arguments. Lacking support in this Court’s cases, the majority effects a not-so-subtle shift from whether the record is adequate to enable discretionary reviewto whether plea-convicted defendants are generally able to “[n]aviga[te] the appellate process without a lawyer’s assistance.” Ante , at 14. This rationale lacks any stopping point. Pro sedefendants may have difficulty navigating discretionary direct appeals and collateral proceedings, but this Court has never extended the right to counsel beyond first appeals as of right. Su

pra , at 4–5, and n. 1. The majority does not demonstrate that pro se defendants have any more difficulty filing leave applications before the Michigan courts than, say, filing petitions for certiorari before this Court. In fact, this Court receives thousands of pro sepetitions13 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting every year that list “the date and nature of the judgment or order appealed from,” Mich. Ct. Rule 7.205(B)(1) (2005); “reci[te] the appellant’s allega tions of error and the relief sought,” ibid.; and “se[t] forth a concise argument . . . in support of the appellant’s position on each issue,” ibid

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

ments for petitions for writs of certiorari). Michigan actu

ally provides a three-page form application accompanied by two pages of instructions for defendants seeking leave to appeal after sentencing ona plea. It counsels defen

dants to “state the issues and facts relevant to the appeal,” and “state the law that supports your position and explain how the law applies to the facts of your case.” Ante, at 15 (internal quotation marks omitted). The majority gives no clue as to how Michigan could make its procedures for seeking leave to appeal less intimidating to the uncoun

seled. Ibid. Regardless, Michigan’s procedures are more than sufficient to enable discretionary review. The majority then attempts to soften the blow by saying that it is doing the State a favor, because “providing indi

gents with appellate counsel will yield applications easier to comprehend.” Ante , at 15–16. Even assuming the majority’s paternalism is accurate, there is no evidence that the Michigan courts currently have difficulty adjudi

cating leave applications. At the least, the majority leaves unexplained why the Michigan courts have greater diffi

culty than do state and federal courts considering discre

tionary direct appeals and collateral proceedings. And even assuming the Michigan courts have special difficulty, it is unlikely any marginal gains will offset the harms wrought by the majority’s preference for redistributing resources to a set of generally less meritorious claims. Whether or not one agrees with the policy choice made by Michigan voters, it is pe rfectly constitutional.14HALBERT v. MICHIGAN

T HOMAS , J., dissenting
III Even assuming that there is a right to appointed appel

late counsel in these circumstances, the right, like the vast majority of other procedural rights, is waivable, despitethe majority’s dictum to the contrary. Moreover, Michigan’s statutory prohibition on appointed appellate counsel does not prevent defendants from waiving any constitu

tional right to such counsel. And, in this case, Halbert’s waiver was knowing and intelligent.
A Legal rights, even constitutional ones, are presump

tively waivable. United Statesv. Mezzanatto, 513 U. S. 196, 200–201 (1995); see also New Yorkv. Hill, 528 U. S. 110, 114 (2000); Peretzv. United States, 501 U. S. 923, 936 (1991) (“The most basic rights of criminal defendants are . . . subject to waiver”). The presumption of waivability holds true for the right to counsel. This Court has held repeatedly that a defendant may waive that right, both at trial and at the entry of a guilty plea, so long as the waiver is knowing and intelligent. Iowav. Tovar, 541 U. S. 77, 88 (2004); Farettav. California, 422 U. S. 806, 835 (1975); Adamsv. United States ex rel. McCann, 317 U. S. 269, 279 (1942); Johnsonv. Zerbst, 304 U. S. 458, 464–465 (1938). Michigan seeks a waiver no more extensive than those this Court has already sanctioned at other stages of a criminal proceeding: It asks defendants convicted by plea to waive the right to appointed counsel on appeal. There may be some nonwaivable rights: ones “so funda

mental to the reliability of the factfinding process that they may never be waived with out irreparably discrediting the federal courts.” Mezzanatto , supra , at 204 (internal quotation marks, brackets, and citation omitted). The right to appointed counsel on discretionary appeal from a guilty plea, however, is not one of them

. Even assuming that the assistance of appellate counsel enhances the15 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting reliability of the factfinding process by correcting errors in that process, it cannot possibly be so fundamental to the process that its absence “irreparably discredit[s]” the federal courts, particularly si nce the Constitution guaran

tees no right to an appeal at all, e.g. , M. L. B. , 519 U. S., at 110, 120. Furthermore, as I have explained, the record of a plea proceeding is fully adequate to enable discretionary review and, in turn, to permitthe correction of errors in the factfinding process when necessary. Supra , at 11 (explaining that a plea-convicted defendant does not face a record unreviewed by counsel, and does not lack any rea

soned treatment of his claims). And, finally, even if the reliability of the appellate process rather than the trial process is the relevant consideration here, the assistance of appellate counsel is not so fundamental to the appellate process that its absence depriv es that process of meaning. Supra , at 6, 11–13. Cf

. Hill, supra , at 116–117 (a consti

tutional protection may be waived even if it benefits soci

ety as well as criminal defendants). Petitioner emphasizes the difficulty of the choice to which Michigan’s statute putscriminal defendants: pro

ceed to trial and guarantee the appointment of appellate counsel, or plead guilty and forgo that benefit. But this Court has repeatedly recognized that difficult choices are a necessary byproduct of the cri minal justice system, and of plea bargaining in particular. See, e.g. , Mezzanatto , su

pra , at 210; Bradyv. United States, 397 U. S. 742, 750 (1970). Michigan’s waiver requires a choice no more de

manding than others criminal defendants regularly face.
B The majority maintains, first, that Halbert could not waive the right to appointed appellate counsel because Michigan law afforded him no such right to waive; second, in dictum, that the right canno t be waived; and, third, that even if the right can be waived, Halbert did not knowingly16HALBERT v. MICHIGAN

T HOMAS , J., dissenting and intelligently waive it here. The Court is wrong in each respect.

1 The majority claims that “[a]t the time he entered his plea, Halbert, in common with other defendants convicted on their pleas, had no recognized right to appointed appel

late counsel he coul d elect to forgo.” Ante , at 16. This assertion apparently refers to the Michigan statute, Mich. Comp. Laws Ann. §770.3a (West 2000). At the time of Halbert’s plea, the statute pr ovided that, if a defendant was convicted by plea, he generally could not receive appointed appellate counsel. The majority’s reasoning is flawed for at least three reasons. First, the statement that “Halbert, in common with other defendants convicted on their pleas, had no recog

nized right to appointe d appellate counsel,” ante , at 16, is either incorrect or irrelevant. If (as we must) we view the waiver decision from the pers pective of Halbert and other defendants before entering a plea , the statement is wrong as a matter of Michigan law. The Michigan Court Rules applicable at the time of Halbe rt’s plea explicitly provided that he was entitled to appointed appellate counsel if convicted following a trial. Mich. Ct. Rule 6.425(F)(1)(b) (Lexis 2001) (“In a case involving a conviction following a trial, if the defendant is indigent, the court must enter an order appointing a lawyer if the request is filed within 42 days after sentencing or within the time for filing an appeal of right”). Michigan law thus gave Halbert, before entering a plea, the choice either to proceed to trial and guarantee himself appointed appellate counsel, or to plead guilty or no contest and forgo appointed appellate counsel in most circumstances. Alternately, by stating that “Halbert, in common with other defendants convicted on their pleas, had no recog

nized right to appointed appellate counsel,” ante , at 16,17 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting the majority might mean that Michigan law afforded Halbert no right to appointed appellate counsel following a plea-based conviction. If so, the statement is true but irrelevant. Of course Michigan law did not afford Halbert a right to appointed counsel on ce he pleaded no contest to the charged crimes. But the question is whether, by pleading no contest with knowledge of the condition (no paid counsel on appeal), Halbert accepted the condition and thereby waived his right to paid counsel on appeal. In other words, the question is whether Halbert had no right to counsel following his plea, because he had elected to forgo the right by pleading

. Second, even if the majority were correct about Michi

gan law, that is beside the point. At issue here is whether Halbert waived any federal constitutional right to ap

pointed appellate counsel hemight have enjoyed. Whether Michigan law provides for such counsel says nothing about whether a defendant possesses (and hence can waive) a federal constituti onal right to that effect. That Michigan, as a matter of state law, prohibited Hal

bert from receiving appointe d appellate counsel if he pleaded guilty or no contest, is irrelevant to whether Halbert had (and could waive) an independent federal constitutional right to such counsel. Third, the majority implies that if the existence of a right to paid appellate counsel had been something more than “no[t] recognized” at the time of Halbert’s plea, then the right would have been waivable, ante , at 16. What this cryptic statement means is unclear. But it cannot possibly mean that only rights that have been explicitly and uniformly recognized by statute or case law may be waived. If that is what the statement means, then the majority has outlawed all conditional waivers (ones in which a defendant agrees that, if he has such a right, he waives it). I take it instead that the reference to rights that are18HALBERT v. MICHIGAN

T HOMAS , J., dissenting something more than “no[t] recognized,” and hence waiv

able, ante , at 16, means not just rights that are uniformly recognized, but also rights whose existence is unsettled. If this understanding of the majority’s rule is correct, then the rule does not justify its claim that the constitutional right at issue was wholly unrecognized. In fact, the exis

tence of such a right was unsettled when Halbert entered his plea. By that date, November 7, 2001, the Michigan Supreme Court had issued Bulger , 462 Mich. 495, 614 N. W. 2d 103, sustaining over a vigorous dissent the prac

tice of denying the appointment of appellate counsel on application for leave to appeal a plea-based conviction; and a Federal District Court had enjoined Michigan state judges from denying the appointment of appellate counsel to indigents pursuant to the state statute, on the ground that the statute was unconstitutional, Tesmerv. Kowalski
, 114 F. Supp. 2d 622, 625–629 (ED Mich. 2000). The ma

jority appears to focus on the fact that Michigan law did not afford defendants this right, but, again, state law is irrelevant to whether they possessed a federal constitu

tional right. The existence of that right was unsettled at the time of Halbert’s plea; hence, on what I take to be the majority’s own terms, the right should have been waivable. 2 The majority attempts to defl ect this criticism by saying that “nothing in Halbert’s pl ea colloquy indicates that he waived an ‘unsettled’ . . . but assumed right to the assis

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2 Moreover, the majority’s failure to make clear which sources of law are to be considered in deciding whether a right is “no[t] recognized,” ante, at 16, and hence nonwaivable, is boun d to wreak havoc. For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakelyv. Wash

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

ing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U. S. ___ (2005). The defe ndant could claim that, in his circuit, the Sixth Amendment right against the application of the Guide

lines was “no[t] recognized,” and hence that the right was nonwaivable.19 Cite as: 545 U. S. ____ (2005)

T HOMAS , J., dissenting tance of appointed appellate counsel, post-plea.” Ante , at 16, n. 7. But any arguable inadequacy in the plea colloquy is a separate issue from, and is irrelevant to, the question at hand: whether the right was recognized, and hence waivable by Halbert (or any other defendant deciding how to plead), irrespective of the content of the plea colloquy.
2 The majority compounds its error by expressing doubt in dictum that the right to appo inted appellate counsel can be waived. Ante , at 17, n. 8. This ignores the wellestablished presumption of waivability, e.g. , Mezzanatto , 513 U. S., at 200–201; Hill , 528 U. S., at 114. By ignoring the presumption, the majorityeffectively reverses it, espousing an analysis that is “directly contrary to the approach we have taken in the context of a broad array of constitutional and statutory provisions.” Mezzanatto, supra, at 200. For the proposition that Michigan’s waiver requirement is unconstitutional, the majority cites Doug

las , 372 U. S., at 357–358, and M. L .B. , 519 U. S., at 110– 113, which explained that states cannot create unreasoned distinctions between indigent and moneyed defendants. Ante , at 17, n. 8. These cases have nothing to do with waiver; they determined only that certain rights existed, not that they both existed and were nonwaivable

. The majority seems to think that Michigan’s waiver requirement arbitrarily distinguishes between indigents and more affluent persons. AsI have explained, however, the statute does no such thing. Rather, it sensibly differ

entiates between defendants convicted at trial and defen

dants convicted by plea. Supra , at 6–7. The majority’s dictum fails to persuade.
3 In this case, the plea colloquy shows that Halbert’s waiver was knowing and intelligent, and that any defi

-20HALBERT v. MICHIGAN

T HOMAS , J., dissenting ciency in the plea colloquy was harmless. See 28 U. S. C. §2111; cf. Fed. Rule Crim. Proc. 11(h). First, Halbert understood he was waiving any appeal as of right: The trial court asked Halbert, “You understand if I accept your plea you are giving up or waiving any claim of an appeal as of right,” and Halbert answered “Yes, sir.” App. 22. Second, the court explained the statutory exceptions gov

erning when counsel must or might be appointed, and Halbert again indicated that he understood those condi

tions. Ante , at 7 (quoting colloquy). In context, the court’s enumeration of the limited conditions in which counsel might be appointed informed Halbert that counsel would not be appointed in other circumstances. Third, at the end of the colloquy, the court asked counsel, “Any other prom

ises or considerations I should be made aware of?” App. 24, and “Do counsel believe I’ve complied with the court rule regarding no contest pleas?” id., at 25, both of which questions the prosecutor and defense attorney answered in the affirmative. Cf. Bradshawv. Stumpf
, ante, at 7 (“Where a defendant is represented by competent counsel, the court usually may rely on that counsel’s assurance that the defendant has been properly informed of the nature and elements of the charge to which he is pleading guilty”). Fourth, the court “f[ound] the plea understand

ingly made, voluntary and accurate.” App. 25. There can be no serious claim that Halbert would have changed his plea had the court provided further information.
* * * Today the Court confers on defendants convicted by plea a right nowhere to be found in the Constitution or this Court’s cases. It does so at the expense of defendants whose claims are, on average, likely more meritorious. And it ignores that, even if such a right exists, it is fully waivable and was waived in this case. I respectfully dissent.