William H. Rehnquist: We'll hear argument now in Antonio Dwayne Halbert v. Michigan. Mr. Moran.
David A. Moran: Mr. Chief Justice, and may it please the Court: The issue in this case is whether, 42 years after this Court decided in Douglas v. California that indigent defendants have the right to the assistance of counsel for a first-tier direct felony appeal--
Sandra Day O'Connor: Well, now, Douglas didn't involve a guilty plea, I guess.
David A. Moran: --It did not, Your Honor. It was a trial case.
Sandra Day O'Connor: And did the Court say anything about the effect of having it be a guilty plea? I guess it didn't.
David A. Moran: It did not. None of this Court's cases in the Douglas line have turned on whether the conviction was by trial or by plea.
Sandra Day O'Connor: Does that make a difference or could it?
David A. Moran: I don't believe it does, Your Honor, because as Mr. Halbert's case demonstrates, all sorts of difficult, technical issues can arise in a guilty plea. Of course, certain issues are waived. Trial issues are waived by the effect of a guilty plea, but many other issues remain. And as Mr. Halbert's case demonstrates, especially in the guilty plea cases... this Court well knows the effect of the Federal sentencing guidelines... very complicated issues of sentencing law arise. And now Michigan has a sentencing guideline system that is perhaps more complicated than the Federal system that's been in effect since the 1980's.
Sandra Day O'Connor: Did... did your client waive any right to appeal here in connection with the proceedings at the plea?
David A. Moran: He did not waive a right to file an application for leave to appeal. Because of the--
Sandra Day O'Connor: What did he waive?
David A. Moran: --He waived the right to have a... to have what is called in Michigan an automatic appeal, in other words, the right to automatically have full briefing and oral argument. So what he agreed to by pleading was to go through the application for leave to appeal procedure which involves a preliminary determination of merit as to whether the appeal should proceed.
Antonin Scalia: Why didn't he waive the right to have counsel for that... for that purpose since that was the law in Michigan?
David A. Moran: Well, he did not... first of all, as a matter of fact, he did not. He was never told at any point during the plea proceedings that he would be giving up his right to counsel.
Antonin Scalia: Well, he was told what... what right to counsel he would have and it didn't include this.
David A. Moran: He was told that under certain circumstances the judge would appoint counsel.
Antonin Scalia: Right.
David A. Moran: But the judge never said, under any other circumstances, I will not appoint counsel.
William H. Rehnquist: Well, isn't that a perfectly natural inference if you're told you get A and B, that C and D might have been... that C and D will not be given?
David A. Moran: It might be a natural inference for somebody with a level of sophistication, but Mr. Halbert is a special education student, functionally illiterate. And nobody explained to him that he wouldn't be given his right to counsel.
Anthony M. Kennedy: Well, did we take this case on the ground that he wasn't adequately advised or did we take the case on the ground that even if he were advised, he'd still have his right?
David A. Moran: I hope the latter, Justice Kennedy, because this is a case in which the State is making a waiver argument. And, of course, the waiver argument is not part of... is not the intent of the statute. What the statute does is it tacks on and, by the way, the defendant should be advised at the time of the plea that they won't be getting counsel.
Anthony M. Kennedy: Well, I... I take it you would challenge the validity of the waiver even if he were advised?
David A. Moran: Absolutely.
Anthony M. Kennedy: And even if he said, I hereby waive?
David A. Moran: Absolutely, we would because that is a waiver that is designed to extract only from the poor. That waiver has no effect whatsoever on those with money because, in fact, a money defendant is not even eligible for appointed counsel on appeal. So that waiver has no effect whatsoever on--
David H. Souter: Well, wouldn't... I'm... I'm sorry.
David A. Moran: --It would have no effect whatsoever on money defendants I'm saying.
David H. Souter: Wouldn't your position be different if he had been advised that he had exactly the right that you claim he has, and the court said, however, in Michigan you may not enter the... the plea unless you waive that right? If... if you don't want to waive that right, which I've just explained to you, we'll... we'll have a trial. Would... would your answer still be that... that waiver would be as a matter of law impossible?
David A. Moran: The waiver would be unconstitutional under those conditions because it is a discriminatory waiver. To show how breathtaking the State's argument--
Anthony M. Kennedy: How... why is that prejudicial to him? He says, okay, I can't plead guilty. I really did it but I can't plead guilty.
David A. Moran: --I'm sorry.
Anthony M. Kennedy: Why doesn't he just have a trial? He says, I'm not going to contest the trial.
David A. Moran: Well, as this Court has long recognized, a trial provides very substantial benefit. I mean, excuse me. A guilty plea provides very substantial benefits. And so the effect of the Michigan statute then would be only the money defendant can receive the benefits of a guilty plea and then have sentencing errors corrected.
Anthony M. Kennedy: I thought you were going to say to Justice Souter, before I interrupted, that it's... that it's far-reaching.
David A. Moran: Yes. Well, not only that, if the State's waiver argument is correct, then presumably the State could extract a waiver saying you can't have free transcripts. You can't have the waiver of the filing fees. In fact, the State could extract a waiver saying you can't have counsel at sentencing.
Antonin Scalia: These are all disparate impact arguments. There's... there's... you're not making any argument that the State intentionally discriminates against the poor. You're just saying the effect of this is harder on the poor than it is on the rich. But I thought our... our equal protection cases have... have said that disparate impact doesn't... doesn't hack it as far as equal protection is concerned.
David A. Moran: Well, Justice Scalia, I actually have two responses to that. First, this is intentionally aimed at the poor. Looking at 770.3a, the statute under... in question here, it is clearly aimed at the indigent. It refers to the indigent. So this is a statute that on its face is... is taking away the right of the indigent and only the indigent to have... have an attorney. So I don't agree that is is a... simply a disparate impact case. But in the context of appellate counsel for a first-tier felony appeal, this Court's cases have... have not applied the same line of analysis that this Court has applied in other contexts, and I think that's quite clear most recently in the MLB case--
Ruth Bader Ginsburg: In any event, you pointed out that on the face there is the distinction on the face of it--
David A. Moran: --Yes.
Ruth Bader Ginsburg: --it is not a disparate impact case at all--
David A. Moran: Yes.
Ruth Bader Ginsburg: --because it affects only indigents.
David A. Moran: Yes. There is no question that this statute was enacted for and specifically applies only to the indigent. It has... it has no impact whatsoever on the wealthy, and it's aimed at the... at the indigent only. So I do... I do not agree that this--
Antonin Scalia: Whenever a State has... has initially given a broad benefit to the poor, whenever it cuts back on poor... on part of that benefit, it is denying equal protection to the poor? That... that seems to be an extraordinary proposition. The State isn't picking on the poor. It's just saying that... that the... the free counsel we have agreed to provide in the past we're no longer going to provide in this... in this one instance of guilty pleas. And... and you say that... that is intentional discrimination against the poor?
David A. Moran: --It's not a... a disparate impact claim I say, because it is intentionally aimed at the poor. The statute was designed to take away counsel from the poor and only from the poor.
Antonin Scalia: So any cutback on benefits that is given... on benefits that are given to the poor is intentional discrimination against the poor.
David A. Moran: I'm not saying any, Justice Scalia.
Antonin Scalia: Just this one because that's your case.
David A. Moran: This case certainly is.
Ruth Bader Ginsburg: You're saying this is case like Douglas which was equal protection, like a free transcript, like a filing fee for an appeal.
David A. Moran: Yes.
Ruth Bader Ginsburg: You're bracketing--
David A. Moran: This case... in many ways the restrictions that are placed on the indigent's ability to appeal in Michigan, as a result of this statute, are worse than those that were struck down in Douglas because at least in Douglas the court, the appellate court, would review the entire transcript, looking for arguable issues. We don't even have that here. All we have here is the indigent forced to shift for himself, forced to try and determine whether there are any issues, forced to order his own transcript. Under the Michigan statute, the indigent has to figure out how to obtain his or her docket entries, his or her transcripts, his or her prisoner account statements, all the documents necessary for filing a first appeal that would ordinarily be done by counsel. And so--
John Paul Stevens: May I just understand one point that Justice Scalia's question raises for me? In your view, is the provision of counsel for the indigent for appellate purposes purely a matter of grace, or was there some underlying obligation to provide counsel?
David A. Moran: --Oh, it's my... it's certainly my contention, Justice Stevens, that Michigan is required to afford appellate counsel in this situation for a first tier direct felony appeal on the merits.
David H. Souter: So that ultimately your case rests not on equal protection but due process.
David A. Moran: It's a merger of both principles, as this Court said--
David H. Souter: But it's one as much as the other, isn't it?
David A. Moran: --Yes.
David H. Souter: I mean, you're... we're saying if you're going to provide a first appeal of right, one incident of that is, as a matter of due process, you've got to provide counsel.
David A. Moran: Yes, Justice Souter.
Antonin Scalia: So you're... you're retracting the pure equal protection claim? I don't think you want to do that. I mean, you would say that even if there were not a due process right, you would still regard this as... as directed against the poor.
David A. Moran: It is directed--
Antonin Scalia: Or not?
David A. Moran: --It is directed against the poor, which is why there is an equal protection component to this argument, but this Court's cases--
Antonin Scalia: But you say that component wouldn't exist unless you begin with a due process right to have counsel on appeal.
David A. Moran: --I believe that's right. It's... it's difficult... I have to confess, Your Honor, it's difficult sometimes to separate out the due process and equal protection strands from the Griffin and Douglas, and this Court most recently in MLB said that there is a certain merger. Also, I believe in Smith v. Robbins this Court reiterated that there is a certain merger of the lines in these cases. But there--
David H. Souter: You're... you're saying that the due process is what gets you beyond the stage of merely providing counsel as a matter of grace. That's what due process does for you. Because they have to provide counsel not merely as a matter of grace, you have a very clear equal protection case which you would not otherwise have. Isn't... isn't that the way the two work together?
David A. Moran: --I think that's right, Justice Souter. I think I agree with that.
Anthony M. Kennedy: Can... in your view, can the State require a waiver of the right to appeal for everyone?
David A. Moran: That's a question this Court hasn't decided, and I don't have a position on that. But that's far different from this case because that would not be discriminatory.
Anthony M. Kennedy: Well, I'm not so sure. It certainly goes to the importance of the significance of the underlying right. My understanding is... correct me if I'm wrong... that in the Federal system, we require waivers of the right to appeal frequently, even waiver of the right to appeal the sentence even before the sentence is calculated, as I understand it.
David A. Moran: Yes.
Anthony M. Kennedy: And do you question the lawfulness of that?
David A. Moran: I don't. And that... that case has not come before this Court yet, and so I don't know how this Court would decide that case if it comes. I know some of the Federal circuits have upheld such appellate waivers as a part of a negotiated guilty plea. One thing the Michigan statute is... does is it takes away the right to appeal effectively for indigents without negotiation. It's... it's the baseline.
Antonin Scalia: But, Mr. Moran, if... if you're... if you're tying your equal protection claim to a due process claim and if it is not a violation of due process to require people to waive their... I mean, you can waive entirely the right to appeal. Surely you can waive the right to counsel on appeal. If that's not a violation of due process, then your equal protection claim dissolves.
David A. Moran: But, Your Honor, the problem is... is that the statute requires only the poor, imposes a forced waiver on only the poor.
Antonin Scalia: That's an equal protection claim.
David A. Moran: That's an equal protection claim.
Antonin Scalia: But you've... you've said your equal protection claim hinges on the due process claim. If the due process claim, in turn, hinges upon waiver, then apart from the... from the dispute in this case as to whether waiver occurred or not, if waiver does occur, there's no due process claim, and then there's no equal protection claim.
David A. Moran: I'm really not sure that you can separate out the two strands of the Fourteenth Amendment again, and I know this Court didn't try in MLB, and I know this Court didn't try in Smith v. Robbins, so that there is... there is a component of both. And it's precisely because of these sorts of questions that I think you have to view them as an integrated whole for purposes of the Griffin/Douglas line.
David H. Souter: In any case--
Sandra Day O'Connor: Where... where do we find the waiver here? Is it in the joint appendix?
David A. Moran: Well, it's my position there was no waiver, but the--
Sandra Day O'Connor: But you referred to something that was waived.
David A. Moran: --Yes.
Sandra Day O'Connor: Where would we find that?
David A. Moran: Well, the plea proceeding. It's the plea proceeding. And it's--
Sandra Day O'Connor: Well, don't take your time to look it up. Maybe counsel for respondent can find it for us.
David A. Moran: --It's... it's in the joint appendix--
Sandra Day O'Connor: All right.
David A. Moran: --beginning on page 19.
Antonin Scalia: It's their argument anyway. Let them--
Stephen G. Breyer: I'm missing something on waiver, but I would have thought a person can waive a... a right to have a counsel on appeal. He can waive a trial. He can waive a jury trial. But before he has to... before he decides, he has to know that he has the constitutional right to a jury trial.
David A. Moran: That's right.
Stephen G. Breyer: And why wouldn't he also have to have the... to know that he has the constitutional right to a lawyer to represent him?
David A. Moran: Well, that's my position--
Stephen G. Breyer: All right. That has nothing to do with equal protection. It has to do simply with a very common sense rule that we apply in every case, jury trial, et cetera. So all we'd have to say is, of course, he has a right to a lawyer. Now, if he wants to go back and waive that right, fine.
David A. Moran: --That's right.
Stephen G. Breyer: That's all. That's the end of it.
David A. Moran: That's right.
Stephen G. Breyer: So what's all this complicated thing about?
David A. Moran: If an indigent, after being sentenced, decided for whatever reason I would prefer to go on appeal by myself, which is actually a... a right this Court rejected in Martinez, that you have a right to represent yourself on appeal, but in Michigan an indigent is allowed to... would be allowed to represent himself or herself on appeal if they chose to do so. The problem here is that the statute purports to take away the right, and it's our position that this is a constitutional--
Stephen G. Breyer: No, no. You'd have to say the statute is wrong in taking away the right.
David A. Moran: --Yes.
Stephen G. Breyer: But he can waive it if he wants to, knowing that he has the right.
David A. Moran: That's right. We have no problem with a voluntary waiver. We certainly have a problem with a forced waiver saying that you cannot enter a plea which produces tremendous benefits in Michigan, as everywhere else, unless... unless you agree to waiver--
Antonin Scalia: --Oh, but... but that happens all the time. I mean, the waiver... waiver of appeal in... in guilty... in guilty pleas. That's... that's not permissible either?
David A. Moran: --I take no position on that. It may or may not permissible.
Antonin Scalia: Well, you have to if you're going to make the argument you just made.
David A. Moran: But it's far different because that's something that can be obtained in negotiation. But what we would have--
Sandra Day O'Connor: Well, Mr. Moran, here on page 22 of the joint appendix, the court is speaking to the defendant and says, you understand if I accept your plea, you are giving up or waiving any claim of an appeal as of right.
David A. Moran: --Yes.
Sandra Day O'Connor: And you think that was not effective?
David A. Moran: No. That was effective. That... that's referring to the automatic appeal that he would have if he went to trial where he would have full briefing and oral argument. The Michigan--
Sandra Day O'Connor: Well, I... it doesn't say that.
David A. Moran: --No, it doesn't. This was a... this was a pretty poor waiver proceeding in a number of... of respects, but it--
Anthony M. Kennedy: Well, he does--
Sandra Day O'Connor: I'm--
Anthony M. Kennedy: --he does go on to say that... that he can appoint a lawyer for... in certain instances. He doesn't complete the explanation by saying there are other instances and when I will not appoint one. That he leaves out, although this a represented defendant.
David A. Moran: --Yes, he was.
Anthony M. Kennedy: He had a counsel at the plea.
David A. Moran: He did.
Stephen G. Breyer: I'm mixed up again. What is the answer to this? I... I would have thought that even if those words that Justice O'Connor read referred directly to the kind of appeal that we have in front of us... in other words, the one that's at issue... that still he'd have to know he has a right to a lawyer on that appeal before he could waive it.
David A. Moran: Yes, Justice Breyer, I agree.
Stephen G. Breyer: And does anybody dispute that?
David A. Moran: I believe--
Stephen G. Breyer: Is that at issue here?
David A. Moran: --I... I believe the State might dispute that. I'm not sure. What the Michigan constitution does, Justice O'Connor, if I may come back to your question, is it says that for somebody who pleads guilty or nolo contendere, they are giving up the right to the automatic appeal, and they have... they then have to proceed by the application for leave to appeal. And so the Michigan constitution explicitly still provides a right to appeal, but it changes the method. And so Michigan's appeal, after a guilty plea now, is like the first appeal in several other States, Virginia, West Virginia, and... and several other States have guilty plea appeals.
Antonin Scalia: That's a strange terminology. It doesn't provide a right to appeal. It... it provides a right to apply for an appeal, a right to ask for an appeal. A right to ask for an appeal is not a right to get an appeal.
David A. Moran: It's framed in terms of a... of a right. Page 2 of the brief--
Antonin Scalia: So you have an absolute right to ask for an appeal.
David A. Moran: --Yes.
Antonin Scalia: But that's not a right to appeal. It's a right to request an appeal, which can be granted or denied.
David A. Moran: Yes.
Antonin Scalia: Okay.
David A. Moran: But it's a... it's... what Michigan has done is it has changed the method of the appeal. And so Virginia, for example, has first-tier appeals by petition. West Virginia has a first-tier by petition and--
Antonin Scalia: Well, it's done more than change the method. It's changed the entitlement. The court can simply say we're not interested in your appeal. It doesn't raise a significant legal issue.
David A. Moran: --Yes, Justice Scalia, but that's not how the... the Michigan Court of Appeals works. The Michigan Court of Appeals is an error-correcting court. And so in Mr. Halbert's case, the Michigan Court of Appeals denied his appeal, after his futile attempt to... to identify his issues, with an order saying that there was a lack of merit in the grounds presented. That is a preclusive decision on the merits of his case. That--
Ruth Bader Ginsburg: --That's just... but that's just boiler plate, isn't it? That's what they say in all these cases.
David A. Moran: --Yes.
Ruth Bader Ginsburg: And I think Michigan cites a Michigan Supreme Court decision that says it's not on the merits.
David A. Moran: That--
Ruth Bader Ginsburg: It's People v. Berry?
David A. Moran: --Yes. That was a decision of the Michigan Supreme Court referring to its own orders denying applications for leave to appeal which are not on the merits. The Michigan Supreme Court denies the applications for saying... by saying, we are not persuaded that we should hear the questions presented.
Ruth Bader Ginsburg: Well, why wouldn't it be the same if the... if it's a discretionary appeal at the intermediate appellate level?
David A. Moran: Because the Michigan Court of Appeals, unlike the Michigan Supreme Court, is an error correcting court. And so it issues orders saying denied for lack of merit. And the Michigan Court of Appeals dozens and dozens of times in the last 25 years has said, without exception, that is a decision on the merits that precludes relitigation under the law of the case doctrine.
Antonin Scalia: Didn't... didn't the supreme court in the Bulger case... was that the name of it?
David A. Moran: Yes.
Antonin Scalia: Didn't it say that the... that the intermediate court's denial of... of appeals was a discretionary judgment?
David A. Moran: It called it a discretionary appeal, Justice Scalia, without ever explaining why, and the... the dissent in Bulger pointed out the Michigan Court of Appeals is an error-correcting court. And in fact, the very author of the--
Antonin Scalia: That was a dissent, though.
David A. Moran: --That's right, but the very author of the opinion in Bulger, Chief Justice Corrigan, just 1 year later or 2 years later describes the effect of... of an order denying leave to appeal in the Michigan Court of Appeals, and says it clearly shows they considered and rejected the merits.
David H. Souter: --So, in effect, it's discretionary in the sense that it's discretionary as to whether to give it full-dress treatment, but the bottom line, whether they give it full dress or... or merely discretionary denial is... is an implication on the merits.
David A. Moran: Yes, exactly as in Virginia. In Jackson v. Virginia, the Court recognized that the... the Virginia situation is exactly the same, that there is a petition to appeal to the Virginia Court of Appeals, and that each petition is considered on the merits, and a denial of the petition is seen as a decision on the merits that precludes relitigation under the law of the case doctrine. And so Michigan's appeal after a guilt plea now is exactly like the one in Virginia.
Ruth Bader Ginsburg: Is that something the intermediate appellate court has said? Have they said that, that... we have a... a discretionary appeal, but every... in every case it's a merits decision? We don't have any decisions that say we are exercising our discretion not to review.
David A. Moran: If a... if a appeal or an application to the Michigan Court of Appeals is filed in the wrong form or is untimely or has some other defect, then the court will occasionally issue an order denying the application for that reason. But for any properly filed application for leave to appeal, the longstanding practice of the Michigan Court of Appeals is to say it is denied for lack of merit in the grounds presented.
Antonin Scalia: This means, I would presume, that... that we would... we would have to give... our Federal courts on habeas would have to give deference to all decisions of the intermediate court since they're all on the merits.
David A. Moran: And they do.
Antonin Scalia: Federal courts do?
David A. Moran: Yes.
Antonin Scalia: They assume that all factual and legal arguments have been decided against the... the person applying for a discretionary appeal?
David A. Moran: Yes. After Abela v. Martin in the Sixth Circuit. And there is a... a whole host of Federal district court decisions in the Eastern and Western District of Michigan all saying that when an order is denied for lack of merit in the grounds presented, the AEDPA standard of review applies. And so the State obtains tremendous benefits from this procedure. They obtain deference on habeas corpus review. They prevent the indigent, if the indigent were to ever get a lawyer at some later stage, from beginning relitigation on State collateral review. And so the State very happily argues for all of those purposes that this is a decision on the merits, but then they come before this Court and they say, oh, no, it's not a decision on the merits. It's really discretionary despite what it says because they are hoping that this Court will conclude that it is a discretionary appeal. In fact, the State--
Ruth Bader Ginsburg: Mr. Moran.
David A. Moran: --has made an even more radical argument in its brief. The State maintains that the appeal to the Michigan Court of Appeals is a second-tier appeal, and that is plainly contrary to the... to the actual function of that court because there is a provision that if trial counsel suddenly realizes in a plea case, after sentencing, that there are issues that she should have raised, it allows her to do that. And so the State now argues that that's really the first-tier appeal, and then the application that follows after that to the Michigan Court of Appeals is a second-tier appeal. I'll just point out that even the State's amicus doesn't agree with that, and... and rightfully so in light of Swenson v. Bosler, which has rejected an attempt to reorganize by labeling how one's appeals go.
Ruth Bader Ginsburg: Mr. Moran, before your... your time is up, I did want to know what is your position on... let's say that there is... you prevail and there is a right to counsel for these applications to appeal. And if counsel looks at the case and determines that there is no tenable ground for an appeal, could counsel file the equivalent of an Anders brief?
David A. Moran: Yes. Yes, Justice Ginsburg, and in fact, I have done that personally. Before I became an academic, I worked at the State Appellate Defender Office in Detroit and was appointed to represent indigents on plea appeals. And in a significant percentage of the cases... I can't quote you the numbers off the top of my head... after reviewing the case, the appellate counsel then concludes that there is no merit, that there are no grounds to proceed, that the defendant in fact got whatever it was she bargained for in the plea bargaining, at which point then either a motion to withdraw may be filed or... or the equivalent, the Michigan equivalent, of an Anders brief. And so that is done in a number of cases. It is our position that that procedure actually helps improve the appellate process in Michigan because without that process, all you have are indigents like Mr. Halbert, a special education student with mental disabilities, trying to identify his own issues and fall... and filing, in... in his case, with the help of a fellow prisoner because he could not have done it himself... the help of a fellow prisoner, an application that is completely incoherent, misses several issues that are right on the face of the record, correctly asserts that his sentencing guidelines were misscored but... but without explaining why, without even identifying which sentencing guidelines were misscored. And in fact, he received a minimum sentence that was approximately three times too high under the sentencing guidelines. The State concedes that one of the sentencing guidelines was scored in the State's favor erroneously. We concede one of the... one of the sentencing guidelines was scored in Mr. Halbert's favor erroneously. But then there were two others, and the most important ones, the OV, Offense Variable, 13. That was scored for 25 points in both cases. And so Mr.... Mr. Halbert, in fact, received a sentence that was much too high. Michigan requires... Michigan is one of the few States that requires that ineffective assistance of counsel claims be raised on direct appeal or they're lost. And so at that point, Mr. Halbert had to figure out a way to raise an ineffective assistance of counsel hearing, which requires an evidentiary hearing at which trial counsel must be called, assuming trial counsel is still available to be called, all from prison, and there was no possible way he could do that. So it's not very surprising that even with the help of a fellow inmate, that his application for leave to appeal was completely incoherent. The fellow inmate actually did write the... the trial judge and say we need to have an evidentiary hearing on ineffective assistance of counsel. But under the statute, the judge had no discretion to grant that motion. Under the statute, only if there was already an upward departure from the sentencing guidelines, only then would the judge be required to appoint counsel, and of course, the guidelines, as misscored without objection from defense counsel... there was no upward departure at that point. If the Court has no further questions, I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Moran. Mr. Restuccia.
Bernard E. Restuccia: Mr. Chief Justice, and may it please the Court: I want to start with the factual claim regarding the waiver that the Court identified, pages 22 and 23 from the joint appendix, being the point at which Mr. Halbert, in fact, waived his right to the appointment of appellate counsel. I think Justice Scalia is right in noting that he was told specifically it's under these conditions you'll be appointed a counsel; under these conditions, you might be appointed counsel. From context it's unambiguous that he would otherwise not receive counsel. And what's important is at the joint appendix on page 45, the trial court, in fact, made a factual finding on this point. So in order for this Court to conclude that Mr. Halbert did not waive his right to appellate counsel under the particular circumstances, you would have... you would have to conclude that the trial court was clearly erroneous in its factual finding.
David H. Souter: Well, I mean, wouldn't we have to conclude that if we're going to apply the same standards here that we usually do in... in the plea waiver situation? I mean, we... the... the classic point of it all is the knowing... the... the intelligent, voluntary waiver of a known right. And leaving aside the equal protection problem here, even if we didn't have that, I don't see that there would be... have been an adequate waiver here because he was never told that he had the right that he now claims as a matter of due process. You indeed, dispute it.
Bernard E. Restuccia: Yes.
David H. Souter: But unless he were told that, the... the waiver that... that depends upon parsing the difference between must and may in the two paragraphs of explanation certainly wouldn't be taken as the predicate for a waiver of a known right.
Bernard E. Restuccia: I... I think that the colloquy makes clear that he does not... he's not going to have an appeal as of right, and then when told that--
David H. Souter: Well, the... the appeal of his right... the appeal as of right point, as I understand it, is a different point. What they're getting at there is it will be discretionary with the reviewing court whether your case is reviewed on the merits on some point if you ask for it. We're here dealing with the right to counsel, and it seems to me unless he were told that he had the right to counsel that he claims and he then waived it, that there wouldn't be a... an... an adequate waiver under Boykin.
Bernard E. Restuccia: --I think in... in context when told that only under these circumstances you're going to receive counsel in bringing discretionary application, that it's clear that he is waiving in his decision to go forward with the... his plea--
Stephen G. Breyer: Look, the... imagine... I'm just repeating what Justice Souter said. There must be... it's so obvious that there must be an obvious answer, but I haven't heard the answer. He knows Michigan law or his lawyer does. The Michigan lawyer looks at the statute. It says a defendant who pleads guilty shall not have appellate counsel appointed for review with some exceptions, which they claim are inadequate. So he thinks the law is shall not. I have no right. So he doesn't not only... not only is he not waiving a known right, there's nothing for him to waive. He has no such right. Now, obviously, when there's nothing for him to waive, how could he waive anything? And obviously, a person who's told, hey, you don't have a right to appeal no matter what and then he says, okay, I waive my right to appeal, I mean, really.
Bernard E. Restuccia: --I think that the... the... for the two questions that are asked, he explains... the court explained to him he didn't have appeal as of right but then said--
Stephen G. Breyer: Okay, that's the end of it. Right?
Bernard E. Restuccia: --But then... and then the... the following--
Antonin Scalia: But he had an appeal of right until he pleaded guilty.
Bernard E. Restuccia: --That's right.
Antonin Scalia: And that's where... that's what the waiver consists of. To say he didn't have an appeal of right, no. That's... he had an appeal of right up until the point where he pleads guilty, and that's what... and that's what the judge is asking.
Stephen G. Breyer: Precisely.
Antonin Scalia: Do you want to... do you want to plead guilty, even though if you plead guilty, you'll get... you'll get a lawyer only under these circumstances.
Stephen G. Breyer: Precisely.
Antonin Scalia: The court didn't say only--
Stephen G. Breyer: And that's what we're deciding is--
Antonin Scalia: --That's the problem.
Stephen G. Breyer: --That's exactly the issue in front of us. Is it constitutional or not constitutional? And waiver has nothing to do with it.
Bernard E. Restuccia: I think that... I also want to make the point, of course, that there was a factual finding, so if this Court did conclude, it would have to find the trial court was clearly erroneous. The--
Ruth Bader Ginsburg: Mr. Restuccia, the... we are dealing here, as is not uncommon, with someone who is learning disabled, mentally impaired, and the trial court did not say if you plead, you relinquish your right to counsel in seeking leave to appeal. It said only when... if this exists, I must, and if that exists, I must, but did not say if you plead, you relinquish your right to counsel in seeking leave to appeal. And I was curious as a matter of what is going on in Michigan trial courts now. Do judges routinely tell defendants who plead guilty... tell them not only when the court must give them counsel, but if you plead, you relinquish your right to counsel in seeking leave to appeal? Because that--
Bernard E. Restuccia: --Yes.
Ruth Bader Ginsburg: --that was never imparted in this case.
Bernard E. Restuccia: The advice concerning right to appeal, the one that was used in the trial court here, was a form from 2000. The... the 2004 form is available from the Michigan Supreme Court web site, and it has been modified now that... because the trial court... it seems apparent that he was reading from the advice concerning right of... to appeal. The way it reads now is it will say you are not entitled to have a lawyer appointed at public expense to assist you in filing an application for leave to appeal. So this... this... the colloquy now would happen differently, but I think that--
Antonin Scalia: Of course, your case is a little stronger than... than the court just asked... just saying I must appoint counsel in this circumstance and I must appoint counsel in another circumstance. That might have left open the implication that you could appoint counsel in other circumstances, but the court went on and to say I might appoint counsel in this circumstance and I might appoint counsel in the other circumstance. So if there's any implication from it, the implication is not just that I have... I have listed all the areas in which I must, but it's also I have listed all the areas in which I either must or even may, if there's an implication.
Bernard E. Restuccia: --I think... I think that's right.
Ruth Bader Ginsburg: Well, apparently the people who... who redid the model instructions thought that this would be a clearer one, to tell him up front you don't get counsel if you don't fit under these exceptions.
Bernard E. Restuccia: That's right. And they... they did... they did modify the form. So on the question of the underlying constitutionality, I want to... I want to make a few points, that the... the threshold question really is whether there's an appeal as of right in Michigan for a plea-based conviction. Michigan law is clear that there is no appeal by right. It's an application process and it's a discretionary review. The Michigan Court of Appeals has no obligation to correct errors in these cases, has no obligation to review the merits.
John Paul Stevens: Do you agree with your opponent that for AEDPA purposes, they treat the intermediate decision as a decision on the merits?
Bernard E. Restuccia: No I'd-- The law in the Sixth Circuit is in fact in conflict with a case... an earlier case, McKenzie v. Smith... had determined that the... a decision with that language, that virtually identical language, is not... is not entitled to deference.
John Paul Stevens: So your opponent has misrepresented Michigan law.
Bernard E. Restuccia: No. I didn't say... I wasn't suggesting that. Abela is one case stating one position. McKenzie, an earlier case, stated another position.
John Paul Stevens: But he says there are dozens of cases at the district court level that apply AEDPA in the way he described. Is that wrong?
Bernard E. Restuccia: Well, he didn't cite those cases. I--
John Paul Stevens: No, he didn't, but do you think he's wrong?
Bernard E. Restuccia: --I... I know that our office handles all the habeas... habeas corpus--
John Paul Stevens: Do you think he's wrong?
Bernard E. Restuccia: --I think he is wrong. The--
David H. Souter: Are you going on... on record as saying that Michigan does not and will not, in the United States courts, claim any AEDPA deference as a result of one of these determinations?
Bernard E. Restuccia: --The Solicitor General made that position clear before the argument... before this Court in Tesmer v. Kowalski. So we have not been advancing that claim. In fact, we've been advancing a claim--
David H. Souter: And you have not been... and... and Michigan lawyers have not been advancing that claim in the district courts?
Bernard E. Restuccia: --The... all the habeas petitions are run through the office of the Attorney General, so that the... when the Solicitor General from the State of Michigan instructed our staff not to advance that claim, that means all habeas cases in Michigan essentially there will be... that argument will not be advanced.
David H. Souter: So, so far as you can tell, that's the way it's been.
Bernard E. Restuccia: That's right. And because there is no appeal as of right under Michigan law, this... the Douglas case doesn't govern the disposition. Ultimately the... the controlling is Ross. And the issue then is whether Michigan provides a meaningful access to an indigent defendant who wants to bring an application for leave. That's really the... I think the heart of the constitutional issue. There are three distinct characteristics of the Michigan system. The... the nature of the review is discretionary, and I think comparable to the kind of review in Ross that was described by this Court for the North Carolina Supreme Court. Mr. Moran makes a claim that the Michigan Court of Appeals is an error-correcting court. With regard to applications for leave where there is no right to have the merits reviewed, it is not an error-correcting court. In fact, one of the reasons for the legislation in Michigan, the reason the Michigan constitution was changed was because of the heavy volume that the Michigan Court of Appeals was facing. There are 28 judges in the Michigan Court of Appeals, and they produce--
William H. Rehnquist: Do they all sit together?
Bernard E. Restuccia: --No. They're panels of three. They issue about 4,000 opinions each year. So each judge is responsible for authoring--
William H. Rehnquist: But it's just one court.
Bernard E. Restuccia: --One court. That's right. So each judge is responsible for authoring between 130-140 opinions, having to join in another 280. So resource allocation is one of the pressing concerns in the Michigan Court of Appeals. The situations in which the court of appeals will grant leave on application are rare. It's... it's reluctant to grant leave in these cases in part because of the--
Ruth Bader Ginsburg: Then why... if it's just denying... or not granting appeal, why does it use the boiler plate, for lack of merit in the grounds presented?
Bernard E. Restuccia: --It's used that standard order for the last 20 years or longer. The only Michigan Court of Appeals case in... only published case in an application for leave setting is the Bobenal case cited by the people in our... the State of Michigan in its brief, in which the Michigan Court of Appeals said there is no... this is not a determination on the merits. The only published case for Michigan in which there was an application for leave from a plea-based conviction is People v. Berry in which the Michigan Court of Appeals, after initially having denied leave, then in a collateral attack granted leave on the very same issue and said that its original--
Stephen G. Breyer: Why... sorry. Finish. I just had a... I wanted to go back to something you said, but I want you to be finished.
Antonin Scalia: Could I ask about grounds presented before we get off this? Is it conceivable that the lack of merit in the grounds presented means lack of merit in the... in the grounds of application? Is... is the applicant required to state why this particular appeal is worthy of being entertained?
Bernard E. Restuccia: --They're supposed to raise those arguments. I think that's exactly right, that merits can have different meanings, and it can... it can relate to whether it would justify the resources of the court to examine the underlying merits of the claim. I think that's right. That's one understanding of the... of the order that's consistent with the way it's been treated by the court of appeals and also, most importantly, by the Michigan constitution, when the people of the State of Michigan said trial-based convictions, there's an appeal as of right. For all other convictions, for plea-based convictions, it would be by leave. And Michigan's Supreme Court, in examining this very question about the nature of review, said that it was discretionary.
Ruth Bader Ginsburg: What of Mr.... Mr. Moran's point that this... whatever the merits are, it counts as law of the case and it's... it conclusively determines the issues presented?
Bernard E. Restuccia: That's not what happened in... in People... in the Bobenal case, which was a court of appeals published decision where the order read virtually identical... identically to this one, and the court of appeals said it could... would not be bound by its original denial of leave for the lack of merits on the grounds presented and reached the merits of the claim. The same thing happened in... in the Berry case in which--
David H. Souter: Well, that was the same court, though, wasn't it?
Bernard E. Restuccia: --Right.
David H. Souter: But what... what about preclusion on other courts?
Bernard E. Restuccia: The--
David H. Souter: In litigation in other courts. They... did... did they ever say there is no claim or issue preclusion in other courts as a result of... of our denials?
Bernard E. Restuccia: --The court of appeals was only examining its effect on itself, and wasn't examining on subsequent courts.
David H. Souter: And any... any court, I mean, in... in theory, can... can revise its own... its own opinions. But the... I mean, we look to preclusion really on... on the effect of the judgment in another court, and I take it they have not ruled on that.
Bernard E. Restuccia: Well, but both... both opinions, in Bobenal and Berry, the court said it was not a ruling on the merits. In other words, if a subsequent court then said it was a merits determination, it would be inconsistent with the holding from Bobenal and it would be inconsistent with Berry with saying the merits have not been reached.
Antonin Scalia: And they have said the same, you tell us, as to Federal courts.
Bernard E. Restuccia: Right. The Federal courts have--
Antonin Scalia: I mean, that's another court, and... and they are not asserting that they've decided on the merits in Federal court.
Bernard E. Restuccia: --The Federal courts have been ambiguous. In other words, the Abela case... they said--
Antonin Scalia: I'm not talking about what the Federal courts have said. I'm talking about what... what Michigan has said and... and what the court of... has the court of appeals spoken on that subject?
Bernard E. Restuccia: --Yes. The court of appeals in the Bobenal case said, in fact, examining virtually the identical language of the issue raised here, that this was not a decision on the merits and that it was not itself bound as law of the case because the merits had not been resolved. I think the Bulger case is kind of the paramount case because it is the Michigan Supreme Court conferring the proper legal understanding of the applications for leave, and it said that the nature of the leave is discretionary. I think that fits with common sense understanding because there is no right to have the merits reviewed. Otherwise, it wouldn't make sense to say the application were discretionary if a defendant would have a claim to have any error corrected. Otherwise, he would have a claim on the court of appeals. The court of appeals has full authority to make the determination that even if everything alleged is true, it's not going to correct the error.
Stephen G. Breyer: Look, this is what I'm... I'm interested in. It seems like Michigan is unique here. Why not do, if you're worried about resources, what other States have done? You just say, okay, of course, you have a right to an appeal and, of course, you have a lawyer. We'll give it to you if you're poor. But, by the way, if you want to plead guilty, we're not entering into that deal unless you waive it.
Bernard E. Restuccia: Well, I think that, in a way, Michigan provides a... a greater protection by enabling itself. What the court of appeals is essentially doing with its review is for the... for a case where there's a... an... an egregious set of facts, it can reach in and grant an application and review it on the merits. It's a... it's... it's a kind of a determination about resource allocation, making kind of the hard choices about policy decisions that States have to make.
Sandra Day O'Connor: Is this a case where it would meet the standard for granting leave to appeal?
Bernard E. Restuccia: No. This... for... for Mr. Halbert--
Sandra Day O'Connor: Because of the error in scoring?
Bernard E. Restuccia: --In fact, anyone who's very familiar with the Michigan guideline system would recognize that Mr. Halbert, if anything, received a break in the scoring of the guidelines. That... that ultimately the Offense Variable 13 is a very easy answer to why it was properly scored.
Sandra Day O'Connor: You take the position that in fact there was no error in scoring.
Bernard E. Restuccia: No. The... there was no error in scoring. The Offense Variable 13 claim relates to three... whether the defendant had committed three... three offenses against a person within the... within 5 years. Michigan allows a determination based on preponderance even if there was no conviction entered. Mr. Halbert was a serial child molester who admitted to having sexually assaulted his 14-year-old stepdaughter, a 10-year-old girl, a 6-year-old girl. All that information was in the presentence investigation report. There was no objection to the scoring of Offense Variable 13 because he admitted to the sexual assault. There was... it was never raised--
John Paul Stevens: I thought at page 36 of your brief that you agreed that he made a correct... that there was an error in... of application.
Bernard E. Restuccia: --Right. The Offense Variable 9 was... there was an error with respect to that, but it wouldn't affect the ultimate position he would be placed in the... in the brackets. In fact, the only error that did occur that would have affected the scoring was one in his favor, which would have put him... put him in a higher bracket. So he in fact--
John Paul Stevens: So there were at least two errors. How they balance out I guess is your view they didn't hurt him at all.
Bernard E. Restuccia: --Well, in fact, if anything, helped him. But on a more basic level--
John Paul Stevens: Is that correct? There were two errors in the--
Bernard E. Restuccia: --Yes.
John Paul Stevens: --at least.
Bernard E. Restuccia: Yes.
John Paul Stevens: And he contends there were two more, and that hasn't been resolved.
Bernard E. Restuccia: That's... that's right, but I... I think those claims are--
John Paul Stevens: So at... at least we have to assume that it was not an error-free sentencing proceeding.
Bernard E. Restuccia: --Yes. Well, more importantly, the kinds of issues at play for the sentencing cases are all like this. They... they relate to the minimum sentencing. Michigan systems then determine from a maximum... from a minimum to a maximum which will get a... a range of time. All the... these sentencing guideline cases relate to the minimum sentence. For Mr. Halbert as a sex offender, this is really a question about when he will be eligible for release from the Department of Corrections. He's going to be facing 30 years because all the sentences in Michigan are set by the statute. So these arguments relating lesser liberty--
John Paul Stevens: May I ask another question? Am I correct in assuming from the order entered on page 43 of the joint appendix that even though there were lots of errors there, the fact that they were not raised until after December 11th would have precluded review at the trial court level?
Bernard E. Restuccia: --No. His... the point of the trial court there was that the defendant, if he wanted to withdraw his plea, should have raised that before the sentencing itself because the court has discretion before sentencing to let him out of his plea. After sentencing, he has to show that the plea was invalid. So his time... he was untimely trying to withdraw his plea because he was concerned about consecutive as against concurrent sentences. In... in summary, the... the Michigan system... the... with the limited date to the review and the kinds of issues from plea-based convictions that are at issue are not... are lesser liberty interest questions because they have to do with amount of punishment. The Michigan system extends the relationship of trial counsel to the defendant and asks the trial counsel to raise the motions regarding post-conviction motions which will enable him to have a factual record from which to advance his claims. He's not left to shift for himself, that there is a counsel appointed to identify those meritorious claims--
John Paul Stevens: But if the counsel happens to be incompetent, that's the end of the ball game.
Bernard E. Restuccia: --And that's always the circumstance for a defendant who's bringing a discretionary application where his prior counsel was ineffective, that he can be left to identify the meritorious claims on his own and to make the argument of ineffective assistance of counsel. That's true in Ross as well where your first... where your first appeal as of right, your... your appellate counsel is incompetent. You're going to be left to identify those meritorious claims, raise the issue of ineffective assistance of counsel, and to try to avoid procedural bars that you'll be facing. Every system is going to have to draw that line and to say that at some point you're not going to get appointed another attorney. Just because there's access to the system doesn't mean there always has to be another attorney appointed. Otherwise, the point is that you would have to have two attorneys make a review on your case, whereas there is no right to an appeal here that this Court has recognized that ultimately where there... since there is no right to appeal, that he had an opportunity to have a trial counsel--
John Paul Stevens: But, of course, if he had had paid counsel, he would not have had these handicaps.
Bernard E. Restuccia: --That's right, that the... there is some advantage, but that's not the ultimate--
Antonin Scalia: Competent paid counsel.
Bernard E. Restuccia: --Thank you.
William H. Rehnquist: Thank you, Mr. Restuccia. Mr. Schaerr, we'll hear from you.
Gene C. Schaerr: Mr. Chief Justice, and may it please the Court: Like the Sixth Circuit's invalidation of this Michigan statute in the Tesmer case, petitioner's attempt to invalidate that statute here runs counter to this Court's longstanding tradition of deference to the people of the individual States and to their legislatures in the design and implementation of their criminal justice systems. As the Court said in Coleman v. Thompson, a case like this is a case about federalism because it involves the respect that Federal courts must pay to States and the States' procedural rules. Respect for the State's choices is especially important here because, as the Court put it in Medina v. California, preventing and dealing with crime is much more the business of the States than it is of the Federal Government. Therefore, the Court said we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. And... and as to the question of... of when to provide State-paid counsel, as Justice O'Connor reminded us in Murray v. Giarratano, that's a choice that should be one of legislative choice, especially since it involves difficult policy considerations and the allocation of scarce legal resources.
Stephen G. Breyer: Now, I take it that the basic rule that we've followed... and this is what people are arguing about... could be a criminal trial or proceeding, plea, something in a trial court.
Gene C. Schaerr: Right.
Stephen G. Breyer: It emerges with a judgment, and then there is going to be the first review. Call it a leave to appeal, call it an appeal, call it whatever you want, but it is the first review. And in those two instances, State, if the defendant is poor, give him a lawyer. That's simple. That's clear. Everybody could understand it. They may not even have a lot of legal arguments. Now, what significant... what does that prevent a State from doing that it's reasonably important for a State to want to do?
Gene C. Schaerr: Well, again, Justice Breyer, it's a question of allocating scarce legal resources. If you... and this case is a perfect example of that. This case is not... does not involve an appeal as of right. It involves a discretionary appeal, and... and that's the vast bulk of... of appeals that are addressed by the... by the Michigan Court of Appeals. So if you impose here on the State of Michigan an obligation to provide counsel in all of those cases, you are, in essence, forcing the people of Michigan to reallocate their legal resources away from other cases or you're requiring the legislature to increase taxes to pay for that... to pay for that--
Stephen G. Breyer: Is there any other State that's done it the way Michigan has?
Gene C. Schaerr: --I don't believe there's another State that's done it exactly the same way. But I... but I would point out... and I think this is important, Justice Breyer... that... that at least according to the Michigan Supreme Court in the Bulger case, the majority of States don't allow any appeal at all from a plea-based conviction. 21 of them rule it out entirely and expressly, and another 17 effectively rule out appeals from plea-based convictions by... by allowing prosecutors to impose that... impose a waiver as a condition of entering into a plea. So... so the relevant universe for comparison is quite small here. It's really 12 States at most, and... and Michigan sort of fits within the middle of those States in terms of the amount of resources that it provides and opportunities that it provides.
John Paul Stevens: Are you saying... I just want to be clear... that even if this defendant had had paid counsel, he would not have had any right to appeal to the intermediate court?
Gene C. Schaerr: That's correct. It... it's discretionary, and that's clear not just... not just from analysis of the... of the Michigan courts' opinions, but from the provision of the... of... but from the constitutional provision that... that created this entire controversy, which was added in 1994. It's article I, section 20. And that constitutional provision itself draws a sharp distinction between appeals of right and appeals by leave of court. So even if the Michigan courts wanted to have a system of... of mandatory appeals, they're now precluded by the Michigan constitution from doing that. And so... and so clearly, if this Court adheres to the sharp distinction and... which I think is equally sharp and clear, that this Court has made between... between appeals of right and discretionary appeals--
Ruth Bader Ginsburg: But it's not that... it's not that sharp because it was... in Ross, it was the second appeal. So here we have one factor that is like Douglas, Griffin, and one factor that's like Ross. You can't say that it falls in one camp more than the other. This is the first-tier appeal.
Gene C. Schaerr: --I... I understand, Justice Ginsburg, but... but that's not the distinction that I understand this Court's decisions draw. Several times since Douglas and Ross, this Court has said that the right to paid counsel addressed in Douglas extends only to the first appeal of right and no further. And that's... that's Coleman and... and Finley, among others.
John Paul Stevens: Of course, the question is whether the words, of right, were essential to that statement.
Gene C. Schaerr: I... I'm assuming that the Court was being careful in its... in its choice of words, and I believe it was because that... that--
John Paul Stevens: Because then it wouldn't have needed to include the word first.
Gene C. Schaerr: --I'm sorry?
John Paul Stevens: But then the word first was redundant, not the words, of right.
Gene C. Schaerr: No, I don't--
Antonin Scalia: You can have two appeals of right--
Gene C. Schaerr: --That's right.
Antonin Scalia: --I suppose if you wanted to.
Gene C. Schaerr: That's right. Now, so... so the real question here, with regard to the right to paid counsel, is does it make sense to extend what the Court did in Douglas to this new situation. We think it does not. This Court's decisions, Ross and Justice Kennedy's concurrence in... in Murray, as I recall, draw... draw a distinction between the removal of barriers that the State imposes to the exercise of litigation rights on the one hand and, on the other hand, subsidizing, affirmatively subsidizing litigation rights-- And... and I think this Court's care in distinguishing between appeals of right and discretionary appeals reflects a desire to cabin Douglas and... and to avoid any further excursions into the area of subsidies. And we think that's a... we think that's... we think that's good as a matter of policy for the Court to do that, for one thing--
David H. Souter: May... may I ask you one thing lest we forget it? Is... is your argument premised on the assumption that a refusal to hear an appeal is... is not regarded as a determination on the merits and thus-- preclusive?
Gene C. Schaerr: --No, I don't think so. I... I think that helps the argument. But in fact, there are lots of discretionary appeals or discretionary appellate proceedings that... that do result in decisions on the merits. This Court, for example, sometimes summarily affirms or reverses on cert, and the fact that the Court does that doesn't create--
Antonin Scalia: Well, we accept cert before we do that. I thought the question was that the denial of an application for appeal does not have any merits consequence. Wasn't that the question?
David H. Souter: Yes, yes.
Antonin Scalia: Does the denial of an application for appeal have any merits consequence?
Gene C. Schaerr: --Well, as... if... if that's the question, I... I would defer to... to Michigan counsel--
David H. Souter: No. But I'm asking whether that's a premise of your argument because the consequences of your argument are going to be very different depending on whether that is the premise or whether it isn't, whether that premise is true or whether it isn't.
Gene C. Schaerr: --I... I think the distinction is... is not necessarily whether the decisions are on the merits or not. I think the distinction is between appeals of right and... and appeals that are discretionary.
Antonin Scalia: If it's always on the merits, it's an... it's an appeal of right, it seems to me. How can you have a... a discretionary appeal which always decides the merits of the case?
Gene C. Schaerr: Well, I... in... in fact, I don't think that's what happens in Michigan, and... and I think the--
David H. Souter: So your... the assumption of your argument is that it is not on the merits. I. e., it is not a merits determination if there's a denial and hence there is no preclusion.
Gene C. Schaerr: --I... I think that's true. Whether it's an assumption of the argument, I'm not... I'm not so sure.
Stephen G. Breyer: You're talking about a piece of paper, that first piece of paper saying to the appeals court, appeals court, please hear my appeal.
Gene C. Schaerr: Right.
Stephen G. Breyer: And then it lists a whole lot of reasons like a cert petition.
Gene C. Schaerr: Right.
Stephen G. Breyer: And those are likely to do with the merits of the case. I mean, they'll tell all the horrible things that went on. And the question is, is he going to have a lawyer to help him with that piece of paper or not?
Gene C. Schaerr: That's right.
Stephen G. Breyer: All right. Now... now, it sounds to me just the kind of thing you'd write if you had an appeal on the merits too. No. It's even harder. Even harder. You've got to convince them to take it.
Gene C. Schaerr: It... it is more difficult, but... but the disparity between--
Stephen G. Breyer: So why draw that distinction? The piece of paper is the same, even harder to write, needs the lawyer as much, first chance he gets after the trial court. Why draw that distinction?
Gene C. Schaerr: --Well, again, because... because if you... if you broaden the right to State-paid counsel, as... as in Douglas, you're going to require States to... to reallocate resources to that priority and away from other priorities. Also, if you... if you subsidize litigation in the name of providing adequate access to courts or meaningful access to courts, then there's going to be a lot of litigation in the lower Federal courts about exactly how much of a subsidy is necessary reach that standard. And also, if... and this is particularly important here I think. If you require States to subsidize the exercise of a right that they're not required to provide in the first place, like the right to seek review of a... of a plea-based conviction, then you give the States a strong incentive to cut back on or eliminate that right altogether. And... and, you know, who knows? But perhaps that's what's going on in the... in the trend in the States away from providing this right. Thank you.
William H. Rehnquist: Thank you, Mr. Schaerr. Mr. Moran, you have 3 minutes remaining.
David A. Moran: Thank you. I have to begin by correcting several misstatements of fact and of Michigan law. First of all, Mr. Schaerr just said that only a dozen States, I believe, allow for appeals from guilty pleas. That's not correct. Every State in the United States currently allows for appeals from guilty plea... pleas. The Bulger case did say that. They cited a--
Anthony M. Kennedy: Appeals as of right?
David A. Moran: --Not necessarily. As I cited in my brief, a number of States allow for applications or petitions from guilty pleas, but every State has a first tier direct appeal from guilty pleas. The Bulger... the Michigan Supreme Court in Bulger cited a... an article from an Arizona Attorney magazine that was simply incorrect on that. Secondly, on the issue of what is the effect of a order denying leave to appeal for lack of merit on the grounds presented, the State continues to rely on McKenzie v. Smith, an earlier Sixth Circuit opinion, People v. Berry, and Bobenal v. Saginaw Investment. None of those cases uses the phrase, lack of merit on the grounds presented. That phrase does not appear in any of those three cases. The Berry and the Bobenal cases, those are Michigan Court of Appeals cases before 1981. Beginning in 1981, in a series of three cases, People v. Douglas, People v. Hayden, and People v. Wiley, the Michigan Court of Appeals held unambiguously that our orders denying applications or remand orders, in that case, for lack of merit on the grounds presented, was law of the case.
Antonin Scalia: What's the effect of the constitutional provision then?
David A. Moran: I'm sorry? I... I don't--
Antonin Scalia: If that's so, what is the effect of the constitutional provision that Mr. Schaerr read?
David A. Moran: --The Michigan constitutional provision? It changes the way in which guilty plea appeals proceed. Before 1994, there were other types of appeals that had to proceed by application for leave to appeal, primarily latent appeals. If the appeal was filed too late, it had to proceed by application for leave to appeal. In 1994, as a result of the constitutional amendment, guilt plea appeals now have to proceed by application for leave to appeal. That's constitutional. We have no problem with that, and that is the method by which the caseload management problems have been solved. They have been solved.
Antonin Scalia: I... I... you... you have the wrong one. I meant the one that said that applications to the court of appeals are... are... require leave to appeal. What's the effect of that?
David A. Moran: The... I assume you're still referring to article I, section 20 of the Michigan constitution.
Antonin Scalia: Yes. It says that for the court of appeals, you need leave to appeal. I thought they were doing something there. What were they doing?
David A. Moran: They were saying that first-tier felony appeals in Michigan following pleas require leave of the court, require an application for leave to appeal, like latent appeals from trial cases do. But all of those appeals are still decided on the merits with preclusive effect for law of the case purposes. And the Sixth Circuit specifically dealt with that in... in the Abela case. McKenzie v. Smith never... never mentions anything about the lack of merit in the grounds presented. The resource allocations point is simply that not all of these guilty plea appeals are... lead to full argument and full briefing, and that's fine. Michigan can do that. But what Michigan cannot do, as a result of Ellis and Douglas, is for that first gatekeeping part of the appeal, which is where the court has to decide is there merit in this case, to make the indigent shift for himself. And so in... in Smith v. Robbins, this Court, specifically referring back to the Ellis case, said that the problem that the Court identified in Ellis and that became part of the constitutional minimum in Douglas, was that the old California procedure did not require... I see my time is up. Thank you, Mr. Chief Justice.
William H. Rehnquist: Thank you, Mr. Moran. The case is submitted.