(Slip Opinion) OCTOBER TERM, 2004 1 

Syllabus 

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

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

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

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

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

SUPREME COURT OF THE UNITED STATES 

Syllabus 

HALBERT v. MICHIGAN 

CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN 

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

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

proceedings, a State must provide counsel for an indigent defendant 

in a first appeal as of right. Two considerations were key: (1) An appeal “of right” yields an adjudication on the “merits,” id., at 357, and 

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

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

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

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

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

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

Court. Id., at 610–612, 615–618. The Douglas rationale does not extend to second-tier discretionary review, the Court explained, because, at that stage, error correction is not the reviewing court’s 

prime function. Id., at 615. Principal criteria for state high court review, Ross noted, include whether the issues presented are of significant public interest, whether the cause involves legal principles of 

major significance to the State’s jurisprudence, and whether the decision below is in probable conflict with the high court’s precedent. 

Ibid. Further, a defendant who has received counsel’s aid in a firsttier appeal as of right would be armed with a transcript or other record 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 Appeals adjudicates appeals as of right from criminal convictions, except that a defendant convicted on a guilty or nolo contendere plea

who seeks intermediate appellate court review must apply for leave 

to appeal. Under Michigan law, most indigent defendants convicted 

on a plea must proceed pro se in seeking leave to appeal to the inter-
2 HALBERT v. MICHIGAN 

Syllabus 

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

that the Fourteenth Amendment’s Equal Protection and Due Process 

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

defendants seeking review in the intermediate appellate court for 

these reasons: Such review is discretionary; plea proceedings are 

shorter, simpler, and more routine than trials; and a defendant entering a plea accedes to the State’s fundamental interest in finality.

 Petitioner Halbert pleaded nolo contendere to two counts of criminal sexual conduct. During Halbert’s plea colloquy, the trial court 

advised him of instances in which it “must” or “may” appoint appellate 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. Denying the motion, the trial court stated that Halbert’s proper remedy 

was to appeal to the State Court of Appeals. Twice thereafter, Halbert 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 disabilities and was mentally impaired, and that he had been obliged to rely 

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

Halbert’s motion, citing Bulger. Halbert then filed a pro se application for leave to appeal, asserting sentencing error and ineffective assistance 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 declined review. 

Held: The Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who 

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

Pp. 9–17. 

Two aspects of the Michigan Court of Appeals’ process following 

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

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

that court looks to the merits of the appellant’s claims. Second, 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, although he relinquishes access to an appeal as of right, is entitled to apply for 

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

critical importance, the intermediate appellate court, unlike the 

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

court Rule provides that the intermediate court may respond to a 

leave application in a number of ways: It may grant or deny the ap-
Cite as: 545 U. S. ____ (2005) 3 

Syllabus 

plication, enter a final decision, grant other relief, request additional 

material from the record, or require a certified concise statement of 

proceedings and facts from the lower court. The court’s response to 

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

leave—necessarily entails some evaluation of the merits of the 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 discretionary, given the necessity of filing an 

application for leave to appeal. The Ross Court recognized that 

leave-granting determinations by a State’s highest court turn on considerations 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 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. Ross emphasized that a defendant 

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

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

reviewed the trial court record, researched the legal issues, and prepared a brief reflecting that review and research. Ibid. Such a defendant may also be armed with an opinion of the intermediate appellate court addressing the issues counsel raised. Without such 

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

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

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

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

learning disabilities, and mental impairments, are particularly 

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

U. S. ___, ___ (GINSBURG, J., dissenting). Further, appeals by defendants 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 legitimate interest in reducing its judiciary’s workload, but providing indi-
4 HALBERT v. MICHIGAN 

Syllabus 

gents 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. Pp. 11–16. 

The Court disagrees with Michigan’s contention that, even if Halbert had a constitutionally guaranteed right to appointed counsel for 

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

contendere plea. At the time he entered his plea, Halbert had no recognized right to appointed appellate counsel he could elect to forgo. 

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

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

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

Vacated and remanded. 

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

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

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

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

_________________ 

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

Opinion of the Court 

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

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

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order 

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

SUPREME COURT OF THE UNITED STATES 

No. 03–10198 

ANTONIO DWAYNE HALBERT, PETITIONER v. 

MICHIGAN 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

MICHIGAN 

[June 23, 2005] 

JUSTICE GINSBURG delivered the opinion of the Court. 

In 1994, Michigan voters approved a proposal amending 

the State Constitution to provide that “an appeal by an 

accused who pleads guilty or nolo contendere shall be by 

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

“several Michigan state judges began to deny appointed 

appellate counsel to indigents” convicted by plea. 

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

1). Rejecting challenges based on the Equal Protection

and Due Process Clauses of the Fourteenth Amendment to 

the Federal Constitution, the Michigan Supreme Court 

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

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

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

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

Petitioner Antonio Dwayne Halbert, convicted on his 

plea of nolo contendere, sought the appointment of counsel 

to assist him in applying for leave to appeal to the Michigan Court of Appeals. The state trial court and the Court 

of Appeals denied Halbert’s requests for appointed counsel, and the Michigan Supreme Court declined review. 
2 HALBERT v. MICHIGAN 

Opinion of the Court 

Michigan Court of Appeals review of an application for

leave to appeal, Halbert contends, ranks as a first-tier 

appellate proceeding requiring appointment of counsel

under Douglas v. California, 372 U. S. 353 (1963). Michigan urges that appeal to the State Court of Appeals is discretionary and, for an appeal of that order, Ross v. Moffitt, 

417 U. S. 600 (1974), holds counsel need not be appointed. 

Earlier this Term, in Kowalski v. Tesmer, this Court, for 

prudential reasons, declined to reach the classification 

question posed by Michigan’s system for appellate review 

following a plea of guilty, guilty but mentally ill, or nolo 

contendere. Today, we reach the classification question and 

conclude that Halbert’s case is properly ranked with Douglas rather than Ross. Accordingly, we hold that the Due 

Process and Equal Protection Clauses require the appointment 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 convictions. McKane v. Durston, 153 U. S. 684, 687 (1894). 

Having provided such an avenue, however, a State may 

not “bolt the door to equal justice” to indigent defendants. 

Griffin v. Illinois, 351 U. S. 12, 24 (1956) (Frankfurter, J., 

concurring in judgment); see id., at 23 (same) (“[W]hen a 

State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its 

exactions draw a line which precludes convicted indigent 

persons . . . from securing such . . . review.”). 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. Id., at 16–20 (plurality opinion). Douglas relied 

on Griffin’s reasoning to hold that, in first appeals as of 
Cite as: 545 U. S. ____ (2005) 3 

Opinion of the Court 

right, States must appoint counsel to represent indigent 

defendants. 372 U. S., at 357. Ross held, however, that a 

State need not appoint counsel to aid a poor person in

discretionary appeals to the State’s highest court, or in 

petitioning for review in this Court. 417 U. S., at 610–612, 

615–618. 

Cases on appeal barriers encountered by persons unable 

to pay their own way, we have observed, “cannot be resolved by resort to easy slogans or pigeonhole analysis.” 

M. L. B. v. S. L. J., 519 U. S. 102, 120 (1996) (internal 

quotation marks omitted). Our decisions in point reflect 

“both equal protection and due process concerns.” Ibid. 

“The equal protection concern relates to the legitimacy of 

fencing out would-be appellants based solely on their 

inability to pay core costs,” while “[t]he due process concern homes in on the essential fairness of the stateordered proceedings.” Ibid.; see also Evitts v. Lucey, 469 

U. S. 387, 405 (1985).

Two considerations were key to our decision in Douglas 

that a State is required to appoint counsel for an indigent 

defendant’s first-tier appeal as of right. First, such an 

appeal entails an adjudication on the “merits.” 372 U. S., 

at 357. Second, first-tier review differs from subsequent 

appellate stages “at which the claims have once been 

presented by [appellate counsel] and passed upon by an 

appellate court.” Id., at 356. Under the California system 

at issue in Douglas, the first-tier appellate court independently examined the record to determine whether to 

appoint counsel. Id., at 355. When a defendant able to 

retain counsel pursued an appeal, the Douglas Court 

observed, “the appellate court passe[d] on the merits of 

[the] case only after having the full benefit of written 

briefs and oral argument by counsel.” Id., at 356. In 

contrast, when a poor person appealed, “the appellate 

court [wa]s forced to prejudge the merits [of the case] 

before it c[ould] even determine whether counsel should be 
4 HALBERT v. MICHIGAN 

Opinion of the Court 

provided.” Ibid.

 In Ross, we explained why the rationale of Douglas did 

not extend to the appointment of counsel for an indigent 

seeking to pursue a second-tier discretionary appeal to the 

North Carolina Supreme Court or, thereafter, certiorari 

review in this Court. The North Carolina Supreme Court, 

in common with this Court we perceived, does not sit as an 

error-correction instance. 417 U. S., at 615. Principal 

criteria for state high court review, we noted, included 

“whether the subject matter of the appeal has significant 

public interest, whether the cause involves legal principles 

of major significance to the jurisprudence of the State, 

[and] whether the decision below is in probable conflict” 

with the court’s precedent. Ibid. (internal quotation

marks omitted). Further, we pointed out, a defendant who 

had already benefited from counsel’s aid in a first-tier 

appeal as of right would have, “at the very least, a 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.” Ibid. 

II 

A 

Michigan has a two-tier appellate system comprising the 

State Supreme Court and the intermediate Court of Appeals. The Michigan Supreme Court hears appeals by

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

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

appeals as of right from all criminal convictions. Bulger, 

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

reduce the workload of the Court of Appeals, a 1994

amendment to the Michigan Constitution changed the 

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

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

Constitution provides: “In every criminal prosecution, the 
Cite as: 545 U. S. ____ (2005) 5 

Opinion of the Court 

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

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

accused who pleads guilty or nolo contendere shall be by 

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

A defendant convicted by plea who seeks review in the 

Michigan Court of Appeals must now file an application

for leave to appeal pursuant to Mich. Ct. Rule 7.205 

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

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

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

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

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

of Appeals, in its orders denying properly filed applications 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 convicted by plea must proceed pro se in seeking leave to

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

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

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

have appellate counsel appointed for review of the 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 exceeds the upper limit of the minimum sentence range

of the applicable sentencing guidelines[, the] court of 

appeals or the supreme court grants the defendant’s 

application for leave to appeal[, or the] defendant

seeks leave to appeal a conditional plea . . . . 

“(3) The trial court may appoint appellate counsel [if 

the] defendant seeks leave to appeal a sentence based 

upon an alleged improper scoring of an offense variable or a prior record variable[, the] defendant ob-
6 HALBERT v. MICHIGAN 

Opinion of the Court 

jected to the scoring or otherwise preserved the matter for appeal[, and the] sentence imposed by the court 

constitutes an upward departure from the upper limit

of the minimum sentence range that the defendant alleges should have been scored.” §770.3a(1)–(3). 

In People v. Bulger, the Michigan Supreme Court considered whether the Federal Constitution secures a right 

to appointed counsel for plea-convicted defendants seeking 

review in the Court of Appeals. 462 Mich., at 511, 614 

N. W. 2d, at 110. Recognizing Douglas and Ross as the 

guiding decisions, 462 Mich., at 511–516, 614 N. W. 2d, at 

110–112, the State Supreme Court concluded that appointment 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 defendant “accede[s] to the state’s fundamental interest in 

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

Court, adhering to Bulger, upheld the constitutionality of 

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

B 

Petitioner Halbert pleaded nolo contendere to two counts 

of second-degree criminal sexual conduct. App. 23. During Halbert’s plea colloquy, the trial court asked Halbert, 

“You understand if I accept your plea you are giving up or 

waiving any claim of an appeal as of right,” and Halbert 

answered, “Yes, sir.” Id., at 22. The court then advised 

Halbert of certain instances in which, although the appeal

would not be as of right, the court nevertheless “must” or 

“may” appoint appellate counsel. The court did not tell 

Halbert, however, that it could not appoint counsel in any 

other circumstances, including Halbert’s own case: 
Cite as: 545 U. S. ____ (2005) 7 

Opinion of the Court 

“THE COURT: You understand if I accept your plea 

and you are financially unable to retain a lawyer to 

represent you on appeal, the Court must appoint an 

attorney for you if the sentence I impose exceeds the 

sentencing guidelines or you seek leave to appeal a 

conditional plea or the prosecutor seeks leave to 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 DEFENDANT: Yes, sir. 

“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.” Id., at 22–23 (alteration omitted).1 

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 Hal-

—————— 

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

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

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

conveyed to Halbert by the trial judge, the form described the circumstances in which counsel must or may be appointed, but did not expressly state that, absent such circumstances, counsel would not be 

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

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

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

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

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

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

Clerk of Court’s case file). 
8 HALBERT v. MICHIGAN 

Opinion of the Court 

bert’s exposure under the Michigan sentencing guidelines. 

Id., at 33. The trial court set Halbert’s sentences to run 

consecutively. Id., at 35. Halbert submitted a 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.” Id., at 43. 

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. He submitted his initial request on a form provided 

by the State. Id., at 46–50, 53–57. The trial court denied 

the request. Id., at 44–45, 51–52. Halbert next sent the 

trial court a letter and accompanying motion, again seeking appointed counsel. Id., at 58. Halbert stated that his 

sentence had been misscored and that he needed the aid of 

counsel to preserve the issue before undertaking an appeal. 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 ineffective assistance of counsel, id., at 68, and sought, inter alia, 

remand for appointment of appellate counsel and resentencing, id., at 71. In a standard form order, the Court of 

Appeals denied Halbert’s application “for lack of merit in 

the grounds presented.” Id., at 72. 

The State Supreme Court, dividing 5 to 2, denied Halbert’s application for leave to appeal to that court. The 
Cite as: 545 U. S. ____ (2005) 9 

Opinion of the Court 

dissenting justices would have provided for the appointment of counsel, and would have allowed counsel to file a 

supplemental leave application prior to the Court of Appeals’ 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 violated the Fourteenth Amendment. We now vacate the 

judgment of the Michigan Court of Appeals. 

III 

Petitioner Halbert’s case is framed by two prior decisions 

of this Court concerning state-funded appellate counsel, 

Douglas and Ross. The question before us is essentially 

one of classification: With which of those decisions should 

the instant case be aligned?2 We hold that Douglas 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.

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

—————— 

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

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

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

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

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

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

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

Opinion of the Court 

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

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

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

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

importance, the tribunal to which he addresses his application, the Michigan Court of Appeals, unlike the Michigan 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 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.” Mich. Ct. Rule 

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

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

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

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

the court found the matters asserted unworthy of the 

expenditure of further judicial resources. But the court’s 

response to the leave application by any of the specified 

alternatives—including denial of leave—necessarily 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 

—————— 

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

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

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

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

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

representation, because plea-convicted defendants have ample aid for 

preservation of their claims in the trial court and ineffective assistance 

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

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

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

correcting errors made by the lower courts.”). 
Cite as: 545 U. S. ____ (2005) 11 

Opinion of the Court 

require an application for leave to appeal. See Bulger, 462 

Mich., at 506–508, 519, 614 N. W. 2d, at 108, 113; Brief for 

Respondent 31–34.4 Therefore, Michigan maintains, Ross 

is dispositive of this case. The Court in Ross, however, 

recognized that leave-granting determinations by North

Carolina’s Supreme Court turned on considerations other

than the commission of error by a lower court, e.g., the 

involvement of a matter of “significant public interest.” 

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

correct errors in individual cases, but to decide matters of 

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

(2005) (criteria for granting leave to appeal to the Michigan Supreme Court include whether a case presents an 

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

principles of major significance to the state’s jurisprudence”); 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 Supreme 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 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 

—————— 

4The Bulger opinions nowhere describe the discretion exercised by the 

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

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

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

(appeal to intermediate court is discretionary because a defendant must 

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

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

Appeals may deny leave to appeal where error is not outcomedeterminative). 
12 HALBERT v. MICHIGAN 

Opinion of the Court 

appeal or the disposal of a leave application, the Court of 

Appeals’ ruling on a plea-convicted defendant’s claims 

provides the first, and likely the only, direct review the 

defendant’s conviction and sentence will receive. Parties 

like Halbert, however, are disarmed in their endeavor to 

gain first-tier review. As the Court in Ross emphasized, a 

defendant seeking State Supreme Court review following a 

first-tier appeal as of right earlier had the assistance of 

appellate counsel. The attorney appointed to serve at the 

intermediate appellate court level will have reviewed the 

trial court record, researched the legal issues, and prepared a brief reflecting that review and research. 417 

U. S., at 615. The defendant seeking second-tier review 

may also be armed with an opinion of the intermediate 

appellate court addressing the issues counsel raised. A 

first-tier review applicant, forced to act pro se, will face a 

record unreviewed by appellate counsel, and will be 

equipped with no attorney’s brief prepared for, or reasoned 

opinion by, a court of review. 

The Bulger Court concluded that “[a] pro se defendant 

seeking discretionary review” in the Court of Appeals is 

adequately armed because he “will have the benefit of a 

transcript, trial counsel’s framing of the issues in [a] 

motion to withdraw, and the trial court’s ruling on the 

motion.” 462 Mich., at 518, 614 N. W. 2d, at 113; see also 

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

“postconviction motions the lawyer deems appropriate, 

including motions . . . to withdraw plea, or for resentencing”); post, at 11 (THOMAS, J., dissenting).5 But we held in 

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

—————— 

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

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

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

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

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

and filing his motion to withdraw his plea. See supra, at 8. 
Cite as: 545 U. S. ____ (2005) 13 

Opinion of the Court 

comparable materials prepared by trial counsel are no 

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

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

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

motion for new trial which specifically designated the issues 

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

The absence of counsel in these circumstances, Bosler held, 

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

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

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

preparing and submitting a brief to the appellate court 

which defines the legal principles upon which the claims of 

error are based and which designates and interprets the 

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

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

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

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

Court recognized that a transcript and motion by trial 

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

review of the record and legal research. Without guides 

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

to seek leave to appeal to Michigan’s intermediate court 

may be more formal than real. 

Persons in Halbert’s situation are particularly 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.” Kowalski, 543 U. S., at ___ 

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

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

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

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

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

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

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

use a bus schedule, or state in writing an argument made 
14 HALBERT v. MICHIGAN 

Opinion of the Court 

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

among them, have learning disabilities and mental impairments. 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 (identifying 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 consideration on the merits.”); Gideon v. Wainwright, 372 U. S. 

335, 345 (1963) (“Even the intelligent and educated layman has small and sometimes no skill in the science of 

law.” (quoting Powell v. Alabama, 287 U. S. 45, 69 

(1932))). Appeals by defendants convicted on their pleas

may involve “myriad and often complicated” substantive

issues, Kowalski, 543 U. S., at ___ (slip op., at 10)

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

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

who pleads guilty or nolo contendere may still raise on 

appeal 

“constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further 

factual record, jurisdictional defects, challenges to the 

sufficiency of the evidence at the preliminary examination, preserved entrapment claims, mental competency claims, factual basis claims, claims that the 

state had no right to proceed in the first place, including claims that a defendant was charged under an inapplicable statute, and claims of ineffective assistance 
Cite as: 545 U. S. ____ (2005) 15 

Opinion of the Court 

of counsel.” Ibid. (quoting Bulger, 462 Mich., at 561, 

614 N. W. 2d, at 133–134 (Cavanagh, J., dissenting) 

(citations omitted)). 

Michigan’s very procedures for seeking leave to appeal 

after sentencing on a plea, moreover, may intimidate the 

uncounseled. See Kowalski, 543 U. S., at ___ (slip op., at 

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

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

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

“The defendant must submit five copies of the application 

‘stating the date and nature of the judgment or order 

appealed from; concisely reciting the appellant’s allegations of error and the relief sought; [and] setting forth a

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

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

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

Michigan does provide “a three-page form application

accompanied by two pages of instructions for defendants

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

th[e] form is unlikely to provide adequate aid to an indigent 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 omitted) (quoting Application for Leave To Appeal After Sentencing on Plea of Guilty or Nolo Contendere (rev. Oct. 

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

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

applicant familiar with law school examinations, but it is 

a tall order for a defendant of marginal literacy.” 

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

dissenting).

While the State has a legitimate interest in reducing the 
16 HALBERT v. MICHIGAN 

Opinion of the Court 

workload of its judiciary, providing indigents with appellate 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 warranting further review. And when a defendant’s case 

presents no genuinely arguable issue, appointed counsel 

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

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

wholly frivolous, after a conscientious examination of it, he 

should so advise the court and request permission to 

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

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

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

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

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

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

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

Michigan contends that, even if Halbert had a constitutionally 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 defendants convicted on their pleas, had no recognized right to 

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

—————— 

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

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

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

614 N. W. 2d, at 114. 7Assuming, as JUSTICE THOMAS suggests, that whether Michigan law 

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

irrelevant to whether Halbert waived a federal constitutional right to 

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

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

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

post, at 17—is at issue here. Further, nothing in Halbert’s plea colloquy indicates that he waived an “unsettled,” but assumed, right to the 

assistance of appointed appellate counsel, post-plea. See post, at 17–18. 
Cite as: 545 U. S. ____ (2005) 17 

Opinion of the Court 

over, as earlier observed, the trial court did not tell Halbert, simply and directly, that in his case, there would be 

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

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

counsel, as of constitutional rights in the criminal process 

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

sufficient awareness of the relevant circumstances.’ ” 

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

(1970))).8 

* * * 

For the reasons stated, we vacate the judgment of the 

Michigan Court of Appeals and remand the case for further proceedings not inconsistent with this opinion. 

It is so ordered. 

—————— 

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

may be able to waive his right to appeal entirely, Michigan can consequently exact from him a waiver of the right to government-funded 

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

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

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

condition of entering a plea, that condition would operate against 

moneyed and impoverished defendants alike. A required waiver of the

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

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

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

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

of circumstances in which, our decisions hold, the State must affirmatively ensure that poor defendants receive the legal assistance necessary to provide meaningful access to the judicial system. See Douglas, 

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

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

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

criminal defendants of lesser and greater wealth). 
_________________ 

_________________ 

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

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 03–10198 

ANTONIO DWAYNE HALBERT, PETITIONER v. 

MICHIGAN 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF 

MICHIGAN 

[June 23, 2005] 

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, and

with whom THE CHIEF JUSTICE joins as to all but Part III– 

B–3, dissenting. 

Petitioner Antonio Halbert pleaded no contest to 

charges that he sexually assaulted his stepdaughter and 

another young girl. Michigan law did not provide 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 respectfully dissent. 

I 

To understand why the Court’s holding is an unwarranted extension of our precedents, it is necessary first to 

understand the limits that Michigan places on the provision of court-appointed counsel for defendants who plead 

guilty or no contest. Before 1994, Michigan afforded all 

criminal defendants the right to appeal their convictions

to the Michigan Court of Appeals. By the early 1990’s, 
2 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

however, the Michigan Court of Appeals had a backlog of 

thousands of cases awaiting decision, nearly a third of 

which were appeals by defendants who had pleaded guilty 

or no contest. People v. Bulger, 462 Mich. 495, 504, 614 

N. W. 2d 103, 107 (2000). To reduce this backlog, Michigan voters amended the Michigan Constitution in 1994 to

provide that “[i]n every criminal prosecution, the accused 

shall . . . have an appeal as a matter of right, except [that]

. . . an appeal by an accused who pleads guilty or nolo

contendere shall be by leave of the court.” Mich. Const., 

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

This constitutional amendment created a two-track system for Michigan defendants: The Michigan Court of

Appeals must hear the appeals of those who dispute their 

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

concede or do not contest their guilt of the substantive 

crime. 

In 1999, the Michigan Legislature enacted the statute at 

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

pleads guilty, guilty but mentally ill, or nolo contendere

shall not have appellate counsel appointed for review of 

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

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

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

right to counsel on appeal; the statute contains exceptions 

to the general rule. The trial court must appoint appellate 

counsel for plea-convicted defendants if the State seeks

leave to appeal, the defendant’s sentence exceeds the 

upper limit of the applicable minimum guidelines range, 

or the defendant seeks leave to appeal a conditional plea. 

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

counsel for plea-convicted defendants who seek leave to 

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

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

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

(2005), and the plea-convicted defendant is entitled to 
Cite as: 545 U. S. ____ (2005) 3 

THOMAS, J., dissenting 

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

Thus, plea-convicted defendants lack appellate counsel 

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

seeking leave to appeal. 

II 

The majority nevertheless holds that Michigan’s system 

is constitutionally inadequate. It finds that all 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) (THOMAS, J., dissenting). Nor does the 

majority even attempt to ground its holding in the entirety 

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

appellate assistance for indigent criminal defendants. Id., 

at 131–138. The majority ignores the bulk of that jurisprudence and leaves those arguments unanswered.

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

Douglas v. California, 372 U. S. 353 (1963). Douglas, however, does not support extending the right to counsel to 

any form of discretionary review, as Ross v. Moffitt, 417 

U. S. 600 (1974), and later cases make clear. Moreover, 

Michigan has not engaged in the sort of invidious discrimination against indigent defendants that Douglas 

condemns. Michigan has done no more than recognize the

undeniable difference between defendants who plead

guilty and those who maintain their innocence, in an 

attempt to divert resources from largely frivolous appeals 

to more meritorious ones. The majority substitutes its 

own policy preference for that of Michigan voters, and it 

does so based on an untenable reading of Douglas. 
4 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

A 

In Douglas, California granted an initial appeal as of 

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

356. However, the California District Court of Appeal 

appointed counsel for indigent defendants only after determining whether counsel would be useful to the defendant or the court. Ibid. Thus the California appellate 

court was “forced to prejudge the merits” of indigent defendants’ 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 

Griffin v. Illinois, 351 U. S. 12 (1956), and its progeny). By

contrast, in Douglas, California provided appellate review to 

all criminal defendants, but it did not provide a state subsidy for indigent defendants whose claims appeared unlikely 

to benefit from counsel’s assistance. This Court nevertheless held that when States provide a first appeal as of 

right, they must supply indigent defendants with counsel. 

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

to extend Douglas’ right to counsel beyond initial appeals 

as of right. States need not appoint counsel for indigent 

defendants who seek discretionary review in a State’s 

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

Michigan’s system bears some similarity to the state 

systems at issue in both Douglas and Ross. Like the 

defendant in Douglas, Halbert requests appointed counsel 

for an initial appeal before an intermediate appellate 

court. But like the defendant in Ross, Halbert requests

appointed counsel for an appeal that is discretionary, not 

as of right. Crucially, however, Douglas noted that its 

decision extended only to initial appeals as of right—and 

later cases have repeatedly reaffirmed that understand-
Cite as: 545 U. S. ____ (2005) 5 

THOMAS, J., dissenting 

ing.1 This Court has never required States to appoint 

counsel for discretionary review. Ross, supra, at 610; 

Murray v. Giarratano, 492 U. S. 1, 10–11 (1989); see also 

Pennsylvania v. Finley, 481 U. S. 551, 555 (1987). And an 

appeal permitted only “by leave of the court,” Mich. Const., 

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

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

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

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

decision of this Court warrants extending the right to 

counsel to discretionary review, even on a defendant’s 

initial appeal.

Just as important, the rationale of Douglas does not 

support extending the right to counsel to this particular 

form of discretionary review. Admittedly, the precise 

rationale for the Griffin/Douglas line of cases has never 

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

however, have a common theme. States may not impose

financial barriers that preclude indigent defendants from 

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

17–18 (plurality opinion); id., at 22 (Frankfurter, J., concurring in judgment); Burns v. Ohio, 360 U. S. 252, 258 

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

Nor may States create “ ‘unreasoned distinctions’ ” among 

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

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

—————— 

1Douglas, 372 U. S., at 357; Ross, 417 U. S., at 608 (“[Douglas] extended only to initial appeals as of right”); Evitts v. Lucey, 469 U. S. 387, 

394 (1985) (Douglas “is limited to the first appeal as of right”); Pennsylvania v. Finley, 481 U. S. 551, 555 (1987) (“[T]he right to appointed 

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

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

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

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

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

not have a constitutional right to counsel to pursue discretionary state 

appeals or applications for review in this Court”). 
6 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

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

judgment), that “arbitrarily cut off appeal rights for indigents while leaving open avenues of appeals for more affluent persons,” Ross, 417 U. S., at 607. 

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,” Tollett v. Henderson, 411 U. S. 

258, 267 (1973), the potential issues that can be raised on 

appeal are more limited, Bulger, 462 Mich., at 517, and 

n. 7, 614 N. W. 2d, at 112–113, and n. 7. Further, as the 

Michigan Supreme Court has explained, 

“[p]lea proceedings are also shorter, simpler, and more 

routine than trials; the record most often consists of 

the ‘factual basis’ for the plea that is provided to the 

trial court. In contrast with trials, less danger exists 

in plea cases that the record will be so unclear, or the 

errors so hidden, that the defendant’s appeal will be 

reduced to a meaningless ritual.” Id., at 517, 614 

N. W. 2d, at 112. 

When a defendant pleads in open court, there is less need 

for counsel to develop the record and refine claims to 

present to an appellate court. These are all “ ‘[r]easoned 

distinctions’ ” between defendants convicted by trial and 

those convicted by their own plea. M. L. B., 519 U. S., at 
Cite as: 545 U. S. ____ (2005) 7 

THOMAS, J., dissenting 

111 (quoting Rinaldi, supra, at 310). 

The brief history of Michigan’s system confirms this. 

When Michigan voters amended the State Constitution to 

establish the current system, roughly 13,000 civil and

criminal appeals per year clogged the Michigan Court of 

Appeals’ docket. Of those, nearly a third were appeals by 

criminal defendants who had pleaded guilty or no contest. 

Even though at the time plea-convicted defendants were 

appointed paid appellate counsel, few of these defendants 

were granted relief on appeal. Simply put, Michigan’s bar 

and bench were devoting a substantial portion of their 

scarce resources to thousands of cases with little practical 

effect. Reallocating resources was not “invidious discrimination” against criminal defendants, indigent or otherwise. Douglas, 372 U. S., at 356 (internal quotation omitted). 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 preparing 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 applicable 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 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 
8 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

“the cost of enabling courts and prosecutors to respond to 

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

535 U. S. 654, 681 (2002) (SCALIA, J., dissenting); cf. Rompilla v. Beard, ante, at 8 (KENNEDY, J., dissenting). Then, 

too, Michigan is under no constitutional obligation to provide appeals for plea-convicted defendants. Ante, at 2 

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

may decline to provide an appellate process altogether 

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

system of appellate review). Surely plea-convicted defendants 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” discrimination against indigent defendants Douglas prohibits. Instead, the majority says that this case is earmarked by 

two considerations that were also key to this Court’s decision in Douglas: First, when a plea-convicted defendant

seeks leave to appeal, the Michigan Court of Appeals

adjudicates the leave application with reference to the 

merits. Ante, at 9. Second, the plea-convicted defendant 

who seeks leave to appeal is “generally ill equipped to 

represent [himself].” Ibid. Neither of these arguments is 

correct. 

1 

The majority reasons that in adjudicating an application 

for leave to appeal, the Michigan Court of Appeals “is 

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

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

however, was not between appellate systems that involve 

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

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

discretionary and mandatory review. Supra, at 4–6. Of 
Cite as: 545 U. S. ____ (2005) 9 

THOMAS, J., dissenting 

course the California intermediate courts in Douglas 

evaluated cases on their merits: These courts were hearing 

appeals as of right. 

The Michigan Court of Appeals probably does consider 

“the merits of the applicant’s claims” in exercising its

discretion; so do other courts of discretionary review, 

including this Court. For instance, this Court would be 

unlikely to grant a case to announce a rule that could not 

alter the case’s disposition, or to correct an error that had 

not affected the proceedings below. This Court often 

considers whether errors are worth correcting in both 

plenary and summary dispositions. None of this converts 

discretionary, error-noticing review into mandatory, 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 important or interesting. For all we know, it may (and 

probably does) consider both. Regardless, the Court of

Appeals’ decision to grant review remains “discretionary,” 

because it does not depend on “whether there has been ‘a 

correct adjudication of guilt’ in every individual case.” 

Ross, 417 U. S., at 615. Like other courts of discretionary 

review, the Court of Appeals may opt to correct errors, 

ante, at 10–11, and n. 3—but it is not compelled to do so. 

The majority appears to dispute that review before the 

Michigan Court of Appeals is truly discretionary, ante, at 

10–11, and n. 4, but it provides no support for its speculation. Unlike the California District Court of Appeal in 

Douglas, the Michigan Court of Appeals has discretion in 

deciding whether to grant leave applications. See Bulger, 

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

issue as “whether a defendant is entitled under the federal 

constitution to appointed counsel in a first discretionary 
10 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

appeal from a plea-based conviction” (emphasis in original)); id., at 542–543, 614 N. W. 2d, at 125 (Cavanagh, J., 

dissenting) (“Nothing in our court rules or statute precludes the Court of Appeals from denying leave even 

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

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

Appeals’ decision to grant or deny a leave application is 

not constrained by any state constitutional provision,

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

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

The majority’s holding suggests that Michigan’s system

would pass constitutional muster if the Court of Appeals 

recited “lack of importance in the grounds presented” as 

its ground for denying leave, ante, at 10–12, or if its decisional criteria were set forth in a statute, judicial decision, 

or court rule, ibid. Yet the relevant inquiry under Douglas 

and Ross is whether the Court of Appeals is obliged to 

review the case—not whether the Court of Appeals must 

or does offer a particular ground for declining review. 

2 

The majority also asserts that, without counsel, pleaconvicted defendants who seek leave to appeal are “generally 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] hidden,” the appellate court would have difficulty detecting 

errors without the assistance of counsel. Id., at 358. 

This is in part why this Court in Ross did not extend the 

right to counsel to discretionary review before the North 

Carolina Supreme Court. Before that court, a defendant 

applying for leave had “a transcript or other record of trial 

proceedings, a brief on his behalf in the Court of Appeals

setting forth his claims of error, and in many cases an 
Cite as: 545 U. S. ____ (2005) 11 

THOMAS, J., dissenting 

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

Ross, 417 U. S., at 615. Coupled with whatever the defendant 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 Michigan Supreme Court put it best: 

“[Michigan’s] court rules require trial counsel to assist 

the defendant in organizing and presenting to the 

trial court any potential appellate issues that warrant 

preservation. Accordingly, a pro se defendant seeking 

discretionary review will have the benefit of a transcript, trial counsel’s framing of the issues in the motion 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 identifying claims appropriate for plenary consideration. A pleaconvicted defendant does not face a record unreviewed by 

counsel, and he does not lack any reasoned treatment of 

his claims. And, again, plea proceedings tend to be more 

transparent than trials, supra, at 6; “less danger exists in 

plea cases that the record will be so unclear, or the errors 

so hidden,” Bulger, supra, at 517, 614 N. W. 2d, at 112, 

that the Michigan Court of Appeals will be unable to 

identify issues that deserve further examination on appeal. 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 appointment of counsel to aid in the appeal. Mich. Comp. 
12 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

Laws Ann. §770.3a(2)(c) (2005). 

The majority’s unwillingness to confront the distinctions 

between Michigan’s system and the California system at 

issue in Douglas is made clear by its reliance on Swenson 

v. Bosler, 386 U. S. 258 (1967) (per curiam). Swenson considered whether indigent defendants convicted at trial have 

a right to appointed counsel during their initial appeal as of 

right, even if the State provides indigent defendants with a 

trial transcript and a motion for a new trial prepared by 

trial counsel. Id., at 258–259. But Douglas had already 

answered that question, as this Court summarily declared: 

“[Appointed counsel] may not be denied to a criminal defendant, solely because of his indigency, on the only appeal 

which the State affords him as a matter of right.” 386 U. S., 

at 259 (emphasis added). Of course, Michigan’s entire 

argument is that there is a “[r]easoned distinction” between 

defendants convicted following trials and pleas, as there is 

between appeals as of right and discretionary review. 

M. L. B., 519 U. S., at 111 (citation omitted); Brief for 

Respondent 28. This Court’s brief, per curiam opinion 

in Swenson did not consider, much less address, these 

arguments. 

Lacking support in this Court’s cases, the majority effects 

a not-so-subtle shift from whether the record is adequate

to enable discretionary review to whether plea-convicted 

defendants are generally able to “[n]aviga[te] the appellate 

process without a lawyer’s assistance.” Ante, at 14. This 

rationale lacks any stopping point. Pro se defendants may

have difficulty navigating discretionary direct appeals and 

collateral proceedings, but this Court has never extended

the right to counsel beyond first appeals as of right. Supra, at 4–5, and n. 1. The majority does not demonstrate 

that pro se defendants have any more difficulty filing leave 

applications before the Michigan courts than, say, filing 

petitions for certiorari before this Court. 

In fact, this Court receives thousands of pro se petitions 
Cite as: 545 U. S. ____ (2005) 13 

THOMAS, J., dissenting 

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

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

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

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

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

See this Court’s Rule 14 (setting forth analogous requirements for petitions for writs of certiorari). Michigan actually provides a three-page form application accompanied 

by two pages of instructions for defendants seeking leave

to appeal after sentencing on a plea. It counsels defendants 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 uncounseled. 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 indigents 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 adjudicating leave applications. At the least, the majority leaves 

unexplained why the Michigan courts have greater difficulty than do state and federal courts considering discretionary direct appeals and collateral proceedings. And 

even assuming the Michigan courts have special difficulty,

it is unlikely any marginal gains will offset the harms 

wrought by the majority’s preference for redistributing 

resources to a set of generally less meritorious claims. 

Whether or not one agrees with the policy choice made by 

Michigan voters, it is perfectly constitutional. 
14 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

III 

Even assuming that there is a right to appointed appellate counsel in these circumstances, the right, like the vast

majority of other procedural rights, is waivable, despite 

the majority’s dictum to the contrary. Moreover, Michigan’s statutory prohibition on appointed appellate counsel 

does not prevent defendants from waiving any constitutional right to such counsel. And, in this case, Halbert’s 

waiver was knowing and intelligent. 

A 

Legal rights, even constitutional ones, are presumptively waivable. United States v. Mezzanatto, 513 U. S. 

196, 200–201 (1995); see also New York v. Hill, 528 U. S. 

110, 114 (2000); Peretz v. United States, 501 U. S. 923, 936 

(1991) (“The most basic rights of criminal defendants are 

. . . subject to waiver”). The presumption of waivability

holds true for the right to counsel. This Court has held 

repeatedly that a defendant may waive that right, both at 

trial and at the entry of a guilty plea, so long as the waiver 

is knowing and intelligent. Iowa v. Tovar, 541 U. S. 77, 88 

(2004); Faretta v. California, 422 U. S. 806, 835 (1975); 

Adams v. United States ex rel. McCann, 317 U. S. 269, 279 

(1942); Johnson v. Zerbst, 304 U. S. 458, 464–465 (1938). 

Michigan seeks a waiver no more extensive than those

this Court has already sanctioned at other stages of a 

criminal proceeding: It asks defendants convicted by plea 

to waive the right to appointed counsel on appeal. 

There may be some nonwaivable rights: ones “so fundamental to the reliability of the factfinding process that 

they may never be waived without irreparably discrediting 

the federal courts.” Mezzanatto, supra, at 204 (internal

quotation marks, brackets, and citation omitted). The 

right to appointed counsel on discretionary appeal from a 

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

that the assistance of appellate counsel enhances the 
Cite as: 545 U. S. ____ (2005) 15 

THOMAS, J., dissenting 

reliability of the factfinding process by correcting errors in 

that process, it cannot possibly be so fundamental to the 

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

federal courts, particularly since the Constitution guarantees no right to an appeal at all, e.g., M. L. B., 519 U. S., at 

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

a plea proceeding is fully adequate to enable discretionary 

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

the factfinding process when necessary. Supra, at 11 

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

record unreviewed by counsel, and does not lack any reasoned treatment of his claims). And, finally, even if the

reliability of the appellate process rather than the trial 

process is the relevant consideration here, the assistance 

of appellate counsel is not so fundamental to the appellate 

process that its absence deprives that process of meaning. 

Supra, at 6, 11–13. Cf. Hill, supra, at 116–117 (a constitutional protection may be waived even if it benefits society as well as criminal defendants).

Petitioner emphasizes the difficulty of the choice to 

which Michigan’s statute puts criminal defendants: proceed to trial and guarantee the appointment of appellate

counsel, or plead guilty and forgo that benefit. But this 

Court has repeatedly recognized that difficult choices are a 

necessary byproduct of the criminal justice system, and of 

plea bargaining in particular. See, e.g., Mezzanatto, supra, at 210; Brady v. United States, 397 U. S. 742, 750 

(1970). Michigan’s waiver requires a choice no more demanding than others criminal defendants regularly face. 

B 

The majority maintains, first, that Halbert could not 

waive the right to appointed appellate counsel because 

Michigan law afforded him no such right to waive; second, 

in dictum, that the right cannot be waived; and, third, that 

even if the right can be waived, Halbert did not knowingly 
16 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

and intelligently waive it here. The Court is wrong in 

each respect. 

1 

The majority claims that “[a]t the time he entered his 

plea, Halbert, in common with other defendants convicted 

on their pleas, had no recognized right to appointed appellate counsel he could elect to forgo.” Ante, at 16. This 

assertion apparently refers to the Michigan statute, Mich.

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

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

was convicted by plea, he generally could not receive 

appointed appellate counsel. The majority’s reasoning is 

flawed for at least three reasons. 

First, the statement that “Halbert, in common with 

other defendants convicted on their pleas, had no recognized right to appointed appellate counsel,” ante, at 16, is 

either incorrect or irrelevant. If (as we must) we view the 

waiver decision from the perspective of Halbert and other 

defendants before entering a plea, the statement is wrong

as a matter of Michigan law. The Michigan Court Rules 

applicable at the time of Halbert’s plea explicitly provided 

that he was entitled to appointed appellate counsel if 

convicted following a trial. Mich. Ct. Rule 6.425(F)(1)(b)

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

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

order appointing a lawyer if the request is filed within 42 

days after sentencing or within the time for filing an 

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

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

guarantee himself appointed appellate counsel, or to plead 

guilty or no contest and forgo appointed appellate counsel 

in most circumstances. 

Alternately, by stating that “Halbert, in common with 

other defendants convicted on their pleas, had no recognized right to appointed appellate counsel,” ante, at 16, 
Cite as: 545 U. S. ____ (2005) 17 

THOMAS, J., dissenting 

the majority might mean that Michigan law afforded

Halbert no right to appointed appellate counsel following a 

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

irrelevant. Of course Michigan law did not afford Halbert 

a right to appointed counsel once he pleaded no contest to 

the charged crimes. But the question is whether, by

pleading no contest with knowledge of the condition (no

paid counsel on appeal), Halbert accepted the condition 

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

other words, the question is whether Halbert had no right 

to counsel following his plea, because he had elected to

forgo the right by pleading. 

Second, even if the majority were correct about Michigan law, that is beside the point. At issue here is whether 

Halbert waived any federal constitutional right to appointed appellate counsel he might have enjoyed.

Whether Michigan law provides for such counsel says 

nothing about whether a defendant possesses (and hence 

can waive) a federal constitutional right to that effect. 

That Michigan, as a matter of state law, prohibited Halbert from receiving appointed appellate counsel if he 

pleaded guilty or no contest, is irrelevant to whether 

Halbert had (and could waive) an independent federal 

constitutional right to such counsel.

Third, the majority implies that if the existence of a 

right to paid appellate counsel had been something more 

than “no[t] recognized” at the time of Halbert’s plea, then 

the right would have been waivable, ante, at 16. What 

this cryptic statement means is unclear. But it cannot 

possibly mean that only rights that have been explicitly 

and uniformly recognized by statute or case law may be 

waived. If that is what the statement means, then the 

majority has outlawed all conditional waivers (ones in 

which a defendant agrees that, if he has such a right, he 

waives it).

I take it instead that the reference to rights that are 
18 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

something more than “no[t] recognized,” and hence waivable, 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 existence 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 practice of denying the appointment of appellate counsel on

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

a Federal District Court had enjoined Michigan state 

judges from denying the appointment of appellate counsel 

to indigents pursuant to the state statute, on the ground 

that the statute was unconstitutional, Tesmer v. Kowalski, 

114 F. Supp. 2d 622, 625–629 (ED Mich. 2000). The majority 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 constitutional right. The existence of that right was unsettled 

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

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

waivable.2 

The majority attempts to deflect this criticism by saying 

that “nothing in Halbert’s plea colloquy indicates that he 

waived an ‘unsettled’ . . . but assumed right to the assis-

—————— 

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

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

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

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

regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U. S. 296 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. 

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

circuit, the Sixth Amendment right against the application of the Guidelines was “no[t] recognized,” and hence that the right was nonwaivable. 
Cite as: 545 U. S. ____ (2005) 19 

THOMAS, J., dissenting 

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

16, n. 7. But any arguable inadequacy in the plea colloquy 

is a separate issue from, and is irrelevant to, the question 

at hand: whether the right was recognized, and hence 

waivable by Halbert (or any other defendant deciding how 

to plead), irrespective of the content of the plea colloquy. 

2 

The majority compounds its error by expressing doubt in 

dictum that the right to appointed appellate counsel can 

be waived. Ante, at 17, n. 8. This ignores the wellestablished presumption of waivability, e.g., Mezzanatto, 

513 U. S., at 200–201; Hill, 528 U. S., at 114. By ignoring 

the presumption, the majority effectively reverses it, 

espousing an analysis that is “directly contrary to the 

approach we have taken in the context of a broad array of 

constitutional and statutory provisions.” Mezzanatto, 

supra, at 200. For the proposition that Michigan’s waiver 

requirement is unconstitutional, the majority cites Douglas, 372 U. S., at 357–358, and M. L .B., 519 U. S., at 110– 

113, which explained that states cannot create unreasoned 

distinctions between indigent and moneyed defendants. 

Ante, at 17, n. 8. These cases have nothing to do with 

waiver; they determined only that certain rights existed, 

not that they both existed and were nonwaivable. 

The majority seems to think that Michigan’s waiver

requirement arbitrarily distinguishes between indigents 

and more affluent persons. As I have explained, however, 

the statute does no such thing. Rather, it sensibly differentiates between defendants convicted at trial and defendants convicted by plea. Supra, at 6–7. The majority’s 

dictum fails to persuade. 

3 

In this case, the plea colloquy shows that Halbert’s 

waiver was knowing and intelligent, and that any defi-
20 HALBERT v. MICHIGAN 

THOMAS, J., dissenting 

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

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

understood he was waiving any appeal as of right: The 

trial court asked Halbert, “You understand if I accept your 

plea you are giving up or waiving any claim of an appeal

as of right,” and Halbert answered “Yes, sir.” App. 22.

Second, the court explained the statutory exceptions governing when counsel must or might be appointed, and 

Halbert again indicated that he understood those conditions. 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 promises or considerations I should be made aware of?” App. 

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

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

questions the prosecutor and defense attorney answered in 

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

(“Where a defendant is represented by competent counsel, 

the court usually may rely on that counsel’s assurance 

that the defendant has been properly informed of the 

nature and elements of the charge to which he is pleading 

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