Halbert v. Michigan

(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 ap-
peal “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 ex-
tend to second-tier discretionary review, the Court explained, be-
cause, at that stage, error correction is not the reviewing court’s
prime function. Id., at 615. Principal criteria for state high court re-
view, Ross noted, include whether the issues presented are of signifi-
cant public interest, whether the cause involves legal principles of
major significance to the State’s jurisprudence, and whether the deci-
sion below is in probable conflict with the high court’s precedent.
Ibid. Further, a defendant who has received counsel’s aid in a first-
tier appeal as of right would be armed with a transcript or other re-
cord of trial proceedings, a brief in the appeals court setting forth his
claims, and, often, that court’s opinion disposing of the case. Ibid.
Michigan has a two-tier appellate system. The State Supreme
Court hears appeals by leave only. The intermediate Court of Ap-
peals adjudicates appeals as of right from criminal convictions, ex-
cept that a defendant convicted on a guilty or nolo 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 en-
tering a plea accedes to the State’s fundamental interest in finality.
Petitioner Halbert pleaded nolo contendere to two counts of crimi-
nal sexual conduct. During Halbert’s plea colloquy, the trial court
advised him of instances in which it “must” or “may” appoint appel-
late counsel, but failed to tell him that it could not appoint counsel in
any other circumstances, including Halbert’s own case. The day after
his sentence was imposed, Halbert moved to withdraw his plea. De-
nying the motion, the trial court stated that Halbert’s proper remedy
was to appeal to the State Court of Appeals. Twice thereafter, Hal-
bert asked the trial court to appoint counsel to help him prepare an
application for leave to appeal to the intermediate court, stating that
his sentence had been misscored, that he needed counsel to preserve
the issue before undertaking an appeal, that he had learning disabili-
ties and was mentally impaired, and that he had been obliged to rely
on fellow inmates in preparing his pro se filings. The court denied
Halbert’s motion, citing Bulger. Halbert then filed a pro se applica-
tion for leave to appeal, asserting sentencing error and ineffective as-
sistance of counsel and seeking, inter alia, remand for appointment of
appellate counsel. The Court of Appeals denied leave “for lack of
merit in the grounds presented.” The Michigan Supreme Court de-
clined review.
Held: The Due Process and Equal Protection Clauses require the ap-
pointment of counsel for defendants, convicted on their pleas, who
seek access to first-tier review in the Michigan Court of Appeals.
Pp. 9–17.
Two aspects of the Michigan 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, indi-
gent defendants pursuing first-tier review in the Court of Appeals are
generally ill equipped to represent themselves. A defendant who
pleads guilty or nolo contendere in a Michigan court, although he re-
linquishes access to an appeal as of right, is entitled to apply for
leave to appeal, and that entitlement is officially conveyed to him. Of
critical importance, the intermediate appellate court, unlike the
Michigan Supreme Court, sits as an error-correction instance. A
court Rule provides that the intermediate court may respond to a
leave application in a number of ways: It may grant or deny the ap-
 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 appli-
cant’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 con-
siderations other than a lower court’s commission of error, e.g., the
involvement of a matter of “significant public interest.” 417 U. S., at
615. Michigan’s Supreme Court, like the highest courts of other
States, sits not to correct errors in individual cases, but to decide
matters of larger public import. By contrast, the intermediate court,
as an error-correction instance, is guided in responding to leave to
appeal applications by the merits of the particular defendant’s
claims, not by the general importance of the questions presented.
Pp. 10–11.
Whether formally categorized as the decision of an appeal or the
disposal of a leave application, the intermediate appellate court’s rul-
ing on a plea-convicted defendant’s claims provides the first, and
likely the only, direct review the defendant’s conviction and sentence
will receive. Parties like Halbert, however, are disarmed in their en-
deavor to gain first-tier review. 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 pre-
pared a brief reflecting that review and research. Ibid. Such a de-
fendant may also be armed with an opinion of the intermediate ap-
pellate court addressing the issues counsel raised. Without such
guides keyed to a court of review, a pro se applicant’s entitlement to
seek leave to appeal to Michigan’s intermediate court may be more
formal than real. Cf. Swenson v. Bosler, 386 U. S. 258 (per curiam).
Persons in Halbert’s situation, many of whom have little education,
learning disabilities, and mental impairments, are particularly
handicapped as self-representatives. See Kowalski v. Tesmer, 543
U. S. ___, ___ (GINSBURG, J., dissenting). Further, appeals by defen-
dants convicted on their pleas may be “no less complex than other
appeals.” Id., at ___. Michigan’s complex procedures for seeking
leave to appeal after sentencing on a plea, moreover, may intimidate
the uncounseled. See id., at ___ – ___. The State does have a legiti-
mate interest in reducing its judiciary’s workload, but providing indi-
4 HALBERT v. MICHIGAN

Syllabus

gents with appellate counsel will yield applications easier to compre-
hend. Michigan’s Court of Appeals would still have recourse to sum-
mary denials of leave applications in cases not warranting further
review. And when a defendant’s case presents no genuinely arguable
issue, appointed counsel may so inform the court. Pp. 11–16.
The Court disagrees with Michigan’s contention that, even if Hal-
bert had a constitutionally guaranteed right to appointed counsel for
first-level appellate review, he waived that right by entering a nolo
contendere plea. At the time he entered his plea, Halbert had no rec-
ognized right to appointed appellate counsel he could elect to forgo.
Moreover, the trial court did not tell Halbert, simply and directly,
that in his case, there would be no access to appointed counsel. Cf.
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, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 03–10198
_________________

ANTONIO DWAYNE HALBERT, PETITIONER v.
MICHIGAN
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF
MICHIGAN
[June 23, 2005]

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 Michi-
gan Court of Appeals. The state trial court and the Court
of Appeals denied Halbert’s requests for appointed coun-
sel, and the Michigan Supreme Court declined review.
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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). Michi-
gan urges that appeal to the State Court of Appeals is dis-
cretionary 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 Doug-
las rather than Ross. Accordingly, we hold that the Due
Process and Equal Protection Clauses require the appoint-
ment of counsel for defendants, convicted on their pleas,
who seek access to first-tier review in the Michigan Court of
Appeals.
I
The Federal Constitution imposes on the States no
obligation to provide appellate review of criminal convic-
tions. 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 suscepti-
ble 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 fur-
nish 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
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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 re-
solved by resort to easy slogans or pigeonhole analysis.”
M. L. B. v. S. L. J., 519 U. S. 102, 120 (1996) (internal
quotation marks omitted). 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 con-
cern homes in on the essential fairness of the state-
ordered 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 inde-
pendently examined the record to determine whether to
appoint counsel. Id., at 355. When a defendant able to
retain counsel pursued an appeal, the 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
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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 tran-
script or other record of trial proceedings, a brief on his
behalf in the Court of Appeals setting forth his claims of
error, and in many cases an opinion by the Court of Ap-
peals disposing of his case.” Ibid.
II
A
Michigan has a two-tier appellate system comprising the
State Supreme Court and the intermediate Court of Ap-
peals. The Michigan Supreme Court hears appeals by
leave only. Mich. Comp. Laws Ann. §770.3(6) (West Supp.
2004). Prior to 1994, the Court of Appeals adjudicated
appeals as of right from all criminal convictions. Bulger,
462 Mich., at 503–504, 614 N. W. 2d, at 106–107. To
reduce the workload of the Court of Appeals, a 1994
amendment to the Michigan Constitution changed the
process for appeals following plea-based convictions. Id.,
at 504, 614 N. W. 2d, at 106–107. As amended, the State
Constitution provides: “In every criminal prosecution, 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 applica-
tions for leave, uniformly cites “lack of merit in the
grounds presented” as the basis for its decision. See Tr. of
Oral Arg. 21–22, 24, 39.
Under Michigan law, most indigent defendants con-
victed by plea must proceed pro 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 defen-
dant’s conviction or sentence,” except that:
“(2) The trial court shall appoint appellate counsel
for an indigent defendant [if the] prosecuting attorney
seeks leave to appeal[, the] defendant’s sentence ex-
ceeds the upper limit of the minimum sentence range
of the applicable sentencing guidelines[, the] court of
appeals or the supreme court grants the defendant’s
application for leave to appeal[, or the] defendant
seeks leave to appeal a conditional plea . . . .
“(3) The trial court may appoint appellate counsel [if
the] defendant seeks leave to appeal a sentence based
upon an alleged improper scoring of an offense vari-
able or a prior record variable[, the] defendant ob-
6 HALBERT v. MICHIGAN

Opinion of the Court

jected to the scoring or otherwise preserved the mat-
ter for appeal[, and the] sentence imposed by the court
constitutes an upward departure from the upper limit
of the minimum sentence range that the defendant al-
leges should have been scored.” §770.3a(1)–(3).
In People v. Bulger, the Michigan Supreme Court con-
sidered whether the Federal 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 ap-
pointment of counsel is not required for several reasons:
Court of Appeals review following plea-based convictions
is by leave and is thus “discretionary,” id., at 506–508,
519, 614 N. W. 2d, at 108, 113; “[p]lea proceedings are
. . . shorter, simpler, and more routine than trials,” id., at
517, 614 N. W. 2d, at 112; and by entering a plea, a defen-
dant “accede[s] to the state’s fundamental interest in
finality,” ibid. In 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. Dur-
ing Halbert’s plea colloquy, the trial court asked Halbert,
“You understand if I accept your plea you are giving up or
waiving any claim of an appeal as of right,” and Halbert
answered, “Yes, sir.” Id., at 22. The court then advised
Halbert of certain instances in which, although the appeal
would not be as of right, 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:
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Opinion of the Court

“THE COURT: You understand if I accept your plea
and you are financially unable to retain a lawyer to
represent you on appeal, the Court must appoint an
attorney for you if the sentence I impose exceeds the
sentencing guidelines or you seek leave to appeal a
conditional plea or the prosecutor seeks leave to ap-
peal or the Court of Appeals or Supreme Court grants
you leave to appeal. Under those conditions I must
appoint an attorney, do you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Further, if you are financially un-
able to retain a lawyer to represent you on appeal, the
Court may appoint an attorney for you if you allege an
improper scoring of the sentencing guidelines, you ob-
ject to the scoring at the time of the sentencing and
the sentence I impose exceeds the sentencing guide-
lines as you allege it should be scored. Under those
conditions I may appoint an attorney for you, do you
understand that?
“THE DEFENDANT: Yes, sir.” Id., at 22–23 (al-
teration omitted).1
At Halbert’s sentencing hearing, defense counsel re-
quested that the sentences for the two counts run concur-
rently, but urged no error in the determination of Hal-
——————
1 Michigan 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 circum-
stances in which counsel must or may be appointed, but did not ex-
pressly state that, absent such circumstances, counsel would not be
provided. As revised, Michigan’s notice form now states: “You are not
entitled to have a lawyer appointed at public expense to assist you in
filing an application for leave to 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 handwrit-
ten motion to withdraw his plea the day after sentencing.
Denying the motion, the trial court stated that Halbert’s
“proper remedy is to 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 applica-
tion for leave to appeal to the intermediate appellate
court. He submitted his initial request on a form provided
by the State. Id., at 46–50, 53–57. The trial court denied
the request. Id., at 44–45, 51–52. Halbert next sent the
trial court a letter and accompanying motion, again seek-
ing appointed counsel. Id., at 58. Halbert stated that his
sentence had been misscored and that he needed the aid of
counsel to preserve the issue before undertaking an ap-
peal. Id., at 58, 61–62. Halbert also related that he had
“required special education due to learning disabilities,”
id., at 61, and was “mentally impaired,” id., at 62. To
prepare his pro se filings, he noted, he was obliged to rely
on the assistance of fellow inmates. Id., at 61. The trial
court denied Halbert’s motion; citing Bulger, the court
stated that Halbert “does not have a constitutional . . .
right to appointment of appellate counsel to pursue a
discretionary appeal.” App. 64.
Again using a form supplied by the State and acting pro
se, Halbert filed an application for leave to appeal. Id., at
66–71. He asserted claims of sentencing error and ineffec-
tive assistance of counsel, id., at 68, and sought, inter alia,
remand for appointment of appellate counsel and resen-
tencing, id., at 71. In a standard form order, the Court of
Appeals denied Halbert’s application “for lack of merit in
the grounds presented.” Id., at 72.
The State Supreme Court, dividing 5 to 2, denied Hal-
bert’s application for leave to appeal to that court. The
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Opinion of the Court

dissenting justices would have provided for the appoint-
ment of counsel, and would have allowed counsel to file a
supplemental leave application prior to the Court of Ap-
peals’ reconsideration of Halbert’s pleas. Id., at 84.
We granted certiorari, 543 U. S. ___ (2005), to consider
whether the denial of appointed counsel to Halbert vio-
lated the Fourteenth Amendment. We now vacate the
judgment of the Michigan Court of Appeals.
III
Petitioner Halbert’s case is framed by two prior decisions
of this Court concerning state-funded appellate counsel,
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 pro-
vides the controlling instruction. Two aspects of the
Michigan Court of Appeals’ process following plea-based
convictions lead us to that conclusion. First, in determin-
ing how to dispose of an application for leave to appeal,
Michigan’s intermediate appellate court looks to the mer-
its of the claims made in the application. Second, indigent
defendants pursuing first-tier review in the Court of Ap-
peals are generally ill equipped to represent themselves.
A defendant who pleads guilty or nolo contendere in a
Michigan court does not thereby forfeit all opportunity for
appellate review. Although he relinquishes access to an
appeal as of right, he is entitled to apply for leave to ap-
peal, and that entitlement is officially conveyed to him.
See supra, at 4–5; Mich. Ct. Rule 6.425(E)(2)(a) (2005)

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

this case should be bracketed with 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 appli-
cation, the Michigan Court of Appeals, unlike the Michi-
gan Supreme Court, sits as an error-correction instance.3
The Court of Appeals may respond to a leave application
in a number of ways. It “may grant or deny the applica-
tion; enter a final decision; grant other relief; request
additional material from the record; or require a certified
concise statement of proceedings and facts from the
court . . . whose order is being appealed.” Mich. Ct. Rule
7.205(D)(2) (2005). When the court denies leave using the
stock phrase “for lack of merit in the grounds presented,”
its disposition may not be equivalent to a “final decision”
on the merits, i.e., the disposition may simply signal that
the court found the matters asserted unworthy of the
expenditure of further judicial resources. But the court’s
response to the leave application by any of the specified
alternatives—including denial of leave—necessarily en-
tails some evaluation of the merits of the applicant’s
claims.
Michigan urges that review in the Court of Appeals
following a plea-based conviction is as “discretionary” as
review in the Michigan Supreme Court because both
——————
3 Both the majority and the dissent in People v. Bulger, 462 Mich.
495, 614 N. W. 2d 103 (2000), described the State’s intermediate
appellate court’s function as error correction. Compare id., at 516–518,
614 N. W. 2d, at 112–113 (in the majority’s view, the Court of Appeals
could perform its review function, despite the defendant’s lack of
representation, because plea-convicted defendants have ample aid for
preservation of their 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.”).
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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 Michi-
gan Supreme Court include whether a case presents an
“issue [of] significant public interest” or “involves legal
principles of major significance to the state’s jurispru-
dence”); Great Lakes Realty Corp. v. Peters, 336 Mich. 325,
328–329, 57 N. W. 2d 901, 903 (1953) (equating denial of
an application for leave to appeal to the Michigan Su-
preme Court with denial of a petition for writ of certiorari
in this Court); see also this Court’s Rule 10 (considerations
guiding decision whether to grant certiorari). By contrast,
the Michigan Court of Appeals, because it is an error-
correction instance, is guided in responding to leave to
appeal applications by the merits of the particular defen-
dant’s claims, not by the general importance of the ques-
tions presented.
Whether formally categorized as the decision of an

——————
4 The Bulger opinions nowhere describe the discretion exercised by the

Michigan Court of Appeals as so unconstrained that it may “deny leave [to
appeal] for any reason, or for no reason at all.” Post, at 10 (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 outcome-
determinative).
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 pre-
pared 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 resentenc-
ing”); post, at 11 (THOMAS, J., dissenting).5 But we held in
Swenson v. Bosler, 386 U. S. 258 (1967) (per curiam), that
——————
5 This assumes that trial counsel will recognize, in a postconviction

motion, any issues appropriate for preservation for appellate review. A
lawyer may not, however, perceive his own errors or the need for such a
motion. Defense counsel here, for example, whose performance Halbert
alleged to be ineffective, apparently did not assist Halbert in preparing
and filing his motion to withdraw his plea. See supra, at 8.
 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 handi-
capped as self-representatives. As recounted earlier this
Term, “[a]pproximately 70% of indigent defendants repre-
sented by appointed counsel plead guilty, and 70% of those
convicted are incarcerated.” Kowalski, 543 U. S., at ___
(slip op., at 5) (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 im-
pairments. See U. S. Dept. of Justice, Bureau of Justice
Statistics, A. Beck & L. Maruschak, Mental Health
Treatment in State Prisons, 2000, pp. 3–4 (July 2001),
http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtsp00.pdf (identi-
fying as mentally ill some 16% of state prisoners and
noting that 10% receive psychotropic medication).
Navigating the appellate process without a lawyer’s
assistance is a perilous endeavor for a layperson, and well
beyond the competence of individuals, like Halbert, who
have little education, learning disabilities, and mental
impairments. See Evitts, 469 U. S., at 393 (“[T]he services
of a lawyer will for virtually every layman be necessary to
present an appeal in a form suitable for appellate consid-
eration on the merits.”); Gideon v. Wainwright, 372 U. S.
335, 345 (1963) (“Even the intelligent and educated lay-
man has small and sometimes no skill in the science of
law.” (quoting Powell v. Alabama, 287 U. S. 45, 69
(1932))). Appeals by defendants convicted on their pleas
may involve “myriad and often complicated” substantive
issues, Kowalski, 543 U. S., at ___ (slip op., at 10)
(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 fac-
tual guilt, double jeopardy claims requiring no further
factual record, jurisdictional defects, challenges to the
sufficiency of the evidence at the preliminary exami-
nation, preserved entrapment claims, mental compe-
tency claims, factual basis claims, claims that the
state had no right to proceed in the first place, includ-
ing claims that a defendant was charged under an in-
applicable statute, and claims of ineffective 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 allega-
tions of error and the relief sought; [and] setting forth a
concise argument . . . in support of the appellant’s position
on each issue.’ ” Kowalski, 543 U. S., at ___ (slip op., at 7)
(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 indi-
gent and poorly educated defendant.” Ibid. It directs the
defendant to provide information such as “charge code(s),
MCL citation/PACC Code,” state the issues and facts
relevant to the appeal, and “ ‘state the law that supports
your position and explain how the law applies to the facts
of your case.’ ” Ibid. (some internal quotation marks omit-
ted) (quoting Application for Leave To Appeal After Sen-
tencing on Plea of Guilty or Nolo Contendere (rev. Oct.
2003), http://courts.michigan.gov/scao/courtforms/appeals/
cc405.pdf). “This last task would not be onerous for an
applicant familiar with law school examinations, but it is
a tall order for a defendant of marginal literacy.”
Kowalski, 543 U. S., at ___ (slip op., at 7) (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 appel-
late counsel will yield applications easier to comprehend.6
Michigan’s Court of Appeals would still have recourse to
summary denials of leave applications in cases not war-
ranting further review. And when a defendant’s case
presents no genuinely arguable issue, appointed counsel
may so inform the court. See Anders v. California, 386
U. S. 738, 744 (1967) (“[I]f counsel finds [the] case to be
wholly frivolous, after a conscientious examination of it, he
should so advise the court and request permission to
withdraw,” filing “a brief referring to anything in the
record that might arguably 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 constitu-
tionally guaranteed right to appointed counsel for first-
level appellate review, he waived that right by entering a
plea of nolo contendere. We disagree. At the time he
entered his plea, Halbert, in common with other defen-
dants 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.
7 Assuming, 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 collo-
quy indicates that he waived an “unsettled,” but assumed, right to the
assistance of appointed appellate counsel, post-plea. See post, at 17–18.
 Cite as: 545 U. S. ____ (2005) 17

Opinion of the Court

over, as earlier observed, the trial court did not tell Hal-
bert, simply and directly, that in his case, there would be
no access to appointed counsel. See supra, at 6–7; cf. Iowa
v. Tovar, 541 U. S. 77, 81 (2004) (“Waiver of the right to
counsel, as of constitutional rights in the criminal process
generally, must be a ‘knowing, intelligent ac[t] done with
sufficient awareness of the relevant circumstances.’ ”
(quoting 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 fur-
ther proceedings not inconsistent with this opinion.

It is so ordered.

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

may be able to waive his right to appeal entirely, Michigan can conse-
quently exact from him a waiver of the right to government-funded
appellate counsel. See Tr. of Oral Arg. 14. Many legal rights are
“presumptively waivable,” post, at 14 (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 affirma-
tively ensure that poor defendants receive the legal assistance neces-
sary to provide meaningful access to the judicial system. See Douglas,
372 U. S., at 357–358; M. L. B., 519 U. S., at 110–113; cf. 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 Hal-
bert—as a defendant convicted by a plea of guilty or no
contest—an appointed attorney to help him prepare an
application for leave to appeal to the Michigan Court of
Appeals. The Court holds Michigan’s law unconstitutional
as applied to Halbert. It fails, however, to ground its
analysis in any particular provision of the Constitution or
in this Court’s precedents. It also ignores that, even if
there is a right to counsel in the circumstances at issue,
the right is waivable and was validly waived here. I re-
spectfully dissent.
I
To understand why the Court’s holding is an unwar-
ranted extension of our precedents, it is necessary first to
understand the limits that Michigan places on the provi-
sion of court-appointed counsel for defendants who plead
guilty or no contest. Before 1994, Michigan afforded all
criminal defendants the right 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, Michi-
gan 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 sys-
tem for Michigan defendants: The Michigan Court of
Appeals must hear the appeals of those who dispute their
guilt, while it may elect to hear the appeals of those who
concede or do not contest their guilt of the substantive
crime.
In 1999, the Michigan Legislature enacted the statute at
issue here. It provides that, in general, a “defendant who
pleads guilty, guilty but mentally ill, or nolo contendere
shall not have appellate counsel appointed for review of
the defendant’s conviction 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 plea-
convicted indigent defendants have the right to appellate
counsel when seeking leave to appeal. The majority does
not say where in the Constitution that right is located—
the Due Process Clause, the Equal Protection Clause, or
some purported confluence of the two. 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 juris-
prudence and leaves those arguments unanswered.
Instead, the majority pins its hopes on a single case:
Douglas v. California, 372 U. S. 353 (1963). Douglas, how-
ever, 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 dis-
crimination against indigent defendants that Douglas
condemns. Michigan has done no more than recognize the
undeniable difference between defendants who plead
guilty and those who maintain their innocence, in an
attempt to divert resources 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 de-
termining whether counsel would be useful to the defen-
dant or the court. Ibid. Thus the California appellate
court was “forced to prejudge the merits” of indigent de-
fendants’ appeals, while it judged the merits of other
defendants’ appeals only after briefing and oral argument.
Ibid.
In previous cases, this Court had considered state-
imposed 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 sub-
sidy for indigent defendants whose claims appeared unlikely
to benefit from counsel’s assistance. This Court neverthe-
less held that when States provide a first appeal as of
right, they must supply indigent defendants with counsel.
Ross, supra, at 607. In Ross, however, this Court declined
to extend Douglas’ right to counsel beyond initial appeals
as of right. States need 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., con-
curring 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] ex-
tended 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”); Pennsyl-
vania v. Finley, 481 U. S. 551, 555 (1987) (“[T]he right to appointed
counsel extends to the first appeal of right, and no further”); 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 indi-
gents while leaving open avenues of appeals for more afflu-
ent persons,” Ross, 417 U. S., at 607.
Far from being an “arbitrary” or “unreasoned” distinc-
tion, Michigan’s differentiation between defendants con-
victed at trial and defendants convicted by plea is sensible.
First and perhaps foremost, the danger of wrongful convic-
tions is less significant than in Douglas. In Douglas,
California preliminarily denied counsel to all indigent
defendants, regardless of whether they maintained their
innocence at trial or conceded their guilt by plea. Here,
Michigan preliminarily denies paid counsel only to indi-
gent defendants who admit or do not contest their guilt.
And because a defendant who pleads guilty “may not
thereafter raise independent claims relating to the depri-
vation of constitutional 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 discrimi-
nation” against criminal defendants, indigent or other-
wise. Douglas, 372 U. S., at 356 (internal quotation omit-
ted). It was an attempt to ensure “that frivolous appeals
[were] not subsidized and public moneys not needlessly
spent.” Griffin, supra, at 24 (Frankfurter, J., concurring in
judgment).
Today’s decision will therefore do no favors for indigent
defendants in Michigan—at least, indigent defendants
with nonfrivolous claims. While defendants who admit
their guilt will receive more attention, defendants who
maintain their innocence will receive less. Even some
defendants who plead guilty will feel the pinch, because
plea-convicted defendants are entitled to counsel in pre-
paring their leave applications if, for example, they appeal
from conditional pleas, Mich. Comp. Laws Ann.
§770.3a(2)(d) (2005), or their sentences exceed the applica-
ble guidelines ranges, §770.3a(2)(b). And any plea-
convicted 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 redis-
tribute 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. Rom-
pilla v. Beard, ante, at 8 (KENNEDY, J., dissenting). Then,
too, Michigan is under no constitutional obligation to pro-
vide appeals for plea-convicted defendants. Ante, at 2
(citing 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 defen-
dants would prefer appeals with limited access to counsel
than no appeals at all.
B
The majority does not attempt to demonstrate that
Michigan’s system is the sort of “unreasoned” discrimina-
tion against indigent defendants Douglas prohibits. In-
stead, the majority says that this case is earmarked by
two considerations that were also key to this Court’s deci-
sion in Douglas: First, when a plea-convicted defendant
seeks leave to appeal, the Michigan Court of Appeals
adjudicates the leave application with reference to the
merits. Ante, at 9. Second, the plea-convicted defendant
who seeks leave to appeal is “generally ill equipped to
represent [himself].” Ibid. Neither of these arguments is
correct.
1
The majority reasons that in adjudicating an application
for leave to appeal, the Michigan Court of Appeals “is
guided . . . by the merits of the particular defendant’s
claims.” Ante, at 11. The distinction that 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, error-
correcting review.
Likewise, the Michigan Court of Appeals is not required
to hear particular cases or correct particular errors. It
may elect to hear cases when it finds the trial court’s
disposition questionable or dubious. Or it may elect to
hear cases when it finds the trial court’s disposition im-
portant or interesting. For all we know, it may (and
probably does) consider both. Regardless, the Court of
Appeals’ decision to grant 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 specula-
tion. Unlike the California District Court of Appeal in
Douglas, the Michigan Court of Appeals has discretion in
deciding whether to grant leave applications. See Bulger,
462 Mich., at 519, 614 N. W. 2d, at 113 (describing the
issue as “whether a defendant is entitled under the federal
constitution to appointed counsel in a first discretionary
10 HALBERT v. MICHIGAN

THOMAS, J., dissenting

appeal from a plea-based conviction” (emphasis in origi-
nal)); id., at 542–543, 614 N. W. 2d, at 125 (Cavanagh, J.,
dissenting) (“Nothing in our court rules or statute pre-
cludes the Court of Appeals from denying leave even
though it may believe that 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 deci-
sional 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, plea-
convicted defendants who seek leave to appeal are “gener-
ally ill equipped to represent themselves.” Ante, at 9.
This overgeneralizes Douglas’ rationale. The Douglas
Court was concerned with the “barren record” that would
follow a defendant on appeal. 372 U. S., at 356. For
“where the record [was] unclear or the errors [were] hid-
den,” the appellate court 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 defen-
dant might submit on his own, these materials provided
the State Supreme Court “with an adequate basis for its
decision to grant or deny review.” Ibid.
The majority does not argue that indigent plea-convicted
defendants who file leave applications do so with a “barren
record,” Douglas, supra, at 356, or that the Michigan
Court of Appeals lacks an “adequate basis” for reviewing
their leave applications, Ross, supra, at 615. The Michi-
gan Supreme Court put it best:
“[Michigan’s] court rules require trial counsel to assist
the defendant in organizing and presenting to the
trial court any potential appellate issues that warrant
preservation. Accordingly, a pro se defendant seeking
discretionary review will have the benefit of a tran-
script, trial counsel’s framing of the issues in the mo-
tion to withdraw, and the trial court’s ruling on the
motion.” Bulger, supra, at 518, 614 N. W. 2d, at 113;
see also Mich. Ct. Rule 6.005(H)(4) (2005).
As in Ross, these materials aid both the plea-convicted
defendant and the Michigan Court of Appeals in identify-
ing claims appropriate for plenary consideration. A plea-
convicted 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 ap-
peal. After all, the Michigan Court of Appeals need know
only enough to decide whether to grant further review.
Should it elect to do so, Michigan law requires the ap-
pointment of counsel to aid in the appeal. Mich. Comp.
12 HALBERT v. MICHIGAN

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 con-
sidered 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 defen-
dant, solely because of his indigency, on the only appeal
which the State affords him as a matter of right.” 386 U. S.,
at 259 (emphasis added). Of course, Michigan’s entire
argument is that there is a “[r]easoned distinction” between
defendants convicted following trials and pleas, as there is
between appeals as of right and discretionary review.
M. L. B., 519 U. S., at 111 (citation omitted); Brief for
Respondent 28. This Court’s brief, per 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. Su-
pra, at 4–5, and n. 1. The majority does not demonstrate
that pro se defendants have any more difficulty filing leave
applications before the Michigan courts than, say, filing
petitions for certiorari before this Court.
In fact, this Court receives thousands of pro 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 require-
ments for petitions for writs of certiorari). Michigan actu-
ally provides a three-page form application accompanied
by two pages of instructions for defendants seeking leave
to appeal after sentencing on a plea. It counsels defen-
dants to “state the issues and facts relevant to the appeal,”
and “state the law that supports your position and explain
how the law applies to the facts of your case.” Ante, at 15
(internal quotation marks omitted). The majority gives no
clue as to how Michigan could make its procedures for
seeking leave to appeal less intimidating to the uncoun-
seled. Ibid. Regardless, Michigan’s procedures are more
than sufficient to enable discretionary review.
The majority then attempts to soften the blow by saying
that it is doing the State a favor, because “providing indi-
gents with appellate counsel will yield applications easier
to comprehend.” Ante, at 15–16. Even assuming the
majority’s paternalism is accurate, there is no evidence
that the Michigan courts currently have difficulty adjudi-
cating leave applications. At the least, the majority leaves
unexplained why the Michigan courts have greater diffi-
culty than do state and federal courts considering discre-
tionary direct appeals and collateral proceedings. And
even assuming the Michigan courts have special difficulty,
it is unlikely any marginal gains will offset the harms
wrought by the majority’s preference for redistributing
resources to a set of generally less meritorious claims.
Whether or not one agrees with the policy choice made by
Michigan voters, it is perfectly constitutional.
14 HALBERT v. MICHIGAN

THOMAS, J., dissenting

III
Even assuming that there is a right to appointed appel-
late counsel in these circumstances, the right, like the vast
majority of other procedural rights, is waivable, despite
the majority’s dictum to the contrary. Moreover, Michi-
gan’s statutory prohibition on appointed appellate counsel
does not prevent defendants from waiving any constitu-
tional right to such counsel. And, in this case, Halbert’s
waiver was knowing and intelligent.
A
Legal rights, even constitutional ones, are presump-
tively waivable. United 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 funda-
mental 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 guaran-
tees no right to an appeal at all, e.g., M. L. B., 519 U. S., at
110, 120. Furthermore, as I have explained, the record of
a plea proceeding is fully adequate to enable discretionary
review and, in turn, to 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 rea-
soned treatment of his claims). And, finally, even if the
reliability of the appellate process rather than the trial
process is the relevant consideration here, the assistance
of appellate counsel is not so fundamental to the appellate
process that its absence deprives that process of meaning.
Supra, at 6, 11–13. Cf. Hill, supra, at 116–117 (a consti-
tutional protection may be waived even if it benefits soci-
ety as well as criminal defendants).
Petitioner emphasizes the difficulty of the choice to
which Michigan’s statute puts criminal defendants: pro-
ceed to trial and guarantee the appointment of appellate
counsel, or plead guilty and forgo that benefit. But this
Court has repeatedly recognized that difficult choices are a
necessary byproduct of the criminal justice system, and of
plea bargaining in particular. See, e.g., Mezzanatto, su-
pra, at 210; Brady v. United States, 397 U. S. 742, 750
(1970). Michigan’s waiver requires a choice no more de-
manding than others criminal defendants regularly face.
B
The majority maintains, first, that Halbert could not
waive the right to appointed appellate counsel because
Michigan law afforded him no such right to waive; second,
in dictum, that the right 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 appel-
late 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 recog-
nized 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 recog-
nized 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 Michi-
gan law, that is beside the point. At issue here is whether
Halbert waived any federal constitutional right to ap-
pointed 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 Hal-
bert 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 waiv-
able, ante, at 16, means not just rights that are uniformly
recognized, but also rights whose existence is unsettled. If
this understanding of the majority’s rule is correct, then
the rule does not justify its claim that the constitutional
right at issue was wholly unrecognized. In fact, the exis-
tence of such a right was unsettled when Halbert entered
his plea. By that date, November 7, 2001, the Michigan
Supreme Court had issued Bulger, 462 Mich. 495, 614
N. W. 2d 103, sustaining over a vigorous dissent the prac-
tice of denying the appointment of appellate counsel on
application for leave to appeal a plea-based conviction; and
a Federal District Court had enjoined Michigan state
judges from denying the appointment of appellate counsel
to indigents pursuant to the state statute, on the ground
that the statute was unconstitutional, Tesmer v. Kowalski,
114 F. Supp. 2d 622, 625–629 (ED Mich. 2000). The ma-
jority appears to focus on the fact that Michigan law did
not afford defendants this right, but, again, state law is
irrelevant to whether they possessed a federal constitu-
tional right. The existence of that right was unsettled
at the time of Halbert’s plea; hence, on what I take to
be the majority’s own terms, the right should have been
waivable.2
The majority attempts to deflect this criticism by saying
that “nothing in Halbert’s plea colloquy indicates that he
waived an ‘unsettled’ . . . but assumed right to the assis-
——————
2 Moreover, the majority’s failure to make clear which sources of law are

to be considered in deciding whether a right is “no[t] recognized,” ante, at
16, and hence nonwaivable, is 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. Wash-
ington, 542 U. S. 296 (2004), did not apply to the United States Sentenc-
ing Guidelines, but before this Court held the contrary in United States v.
Booker, 543 U. S. ___ (2005). The defendant could claim that, in his
circuit, the Sixth Amendment right against the application of the Guide-
lines was “no[t] recognized,” and hence that the right was nonwaivable.
 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 well-
established 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 Doug-
las, 372 U. S., at 357–358, and M. L .B., 519 U. S., at 110–
113, which explained that states cannot create unreasoned
distinctions between indigent and moneyed defendants.
Ante, at 17, n. 8. These cases have nothing to do with
waiver; they determined only that certain rights existed,
not that they both existed and were nonwaivable.
The majority seems to think that Michigan’s waiver
requirement arbitrarily distinguishes between indigents
and more affluent persons. As I have explained, however,
the statute does no such thing. Rather, it sensibly differ-
entiates between defendants convicted at trial and defen-
dants convicted by plea. Supra, at 6–7. The majority’s
dictum fails to persuade.
3
In this case, the plea colloquy shows that Halbert’s
waiver was knowing and intelligent, and that any defi-
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 gov-
erning when counsel must or might be appointed, and
Halbert again indicated that he understood those condi-
tions. Ante, at 7 (quoting colloquy). In context, the court’s
enumeration of the limited conditions in which counsel
might be appointed informed Halbert that counsel would
not be appointed in other circumstances. Third, at the end
of the colloquy, the court asked counsel, “Any other prom-
ises or considerations I should be made aware of?” App.
24, and “Do counsel believe I’ve complied with the court
rule regarding no contest pleas?” id., at 25, both of which
questions the prosecutor and defense attorney answered in
the affirmative. Cf. 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 understand-
ingly made, voluntary and accurate.” App. 25. There can
be no serious claim that Halbert would have changed his
plea had the court provided further information.
* * *
Today the Court confers on defendants convicted by plea
a right nowhere to be found in the Constitution or this
Court’s cases. It does so at the expense of defendants
whose claims are, on average, likely more meritorious.
And it ignores that, even if such a right exists, it is fully
waivable and was waived in this case. I respectfully
dissent.