People v. Maxson

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED DECEMBER 22, 2008
PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 129693

MARK ALLEN MAXSON,

Defendant-Appellant.

_______________________________

BEFORE THE ENTIRE BENCH.

MARKMAN, J.

At issue here is whether the United States Supreme Court’s decision in

Halbert v Michigan, 545 US 605; 125 S Ct 2582; 162 L Ed 2d 552 (2005), should

be applied retroactively to cases in which a defendant’s conviction has become

final. In lieu of granting leave to appeal, we affirm the judgment of the trial court

denying defendant’s motion for relief from judgment, and we conclude under

federal and state law that Halbert should not be applied retroactively to cases in

which a defendant’s conviction has become final.
 I. FACTS AND PROCEDURAL HISTORY

In 2001, defendant pleaded guilty to two counts of second-degree criminal

sexual conduct, and subsequently failed to request appointed counsel or to file a

direct appeal. On June 23, 2005, the United States Supreme Court issued Halbert,

which held that indigent defendants who plead guilty to criminal offenses are

entitled to appointed appellate counsel on direct appeal. Id. at 610. After Halbert

was decided, defendant requested appointed counsel in the instant motion for relief

from judgment. However, because defendant’s conviction was final before

Halbert was decided, defendant is only entitled to counsel if the rule announced in

Halbert is applied retroactively.

II. STANDARD OF REVIEW

The retroactivity of a court’s ruling presents an issue of law that this Court

reviews de novo. People v Sexton, 458 Mich 43, 52; 580 NW2d 404 (1998).

III. ANALYSIS

A. RETROACTIVITY UNDER FEDERAL LAW

“New legal principles, even when applied retroactively, do not apply to

cases already closed.” Reynoldsville Casket Co v Hyde, 514 US 749, 758; 115 S

Ct 1745; 131 L Ed 2d 820 (1995). This is because “at some point, ‘the rights of

the parties should be considered frozen’ and a ‘conviction . . . final.’” Id., quoting

United States v Estate of Donnelly, 397 US 286, 296; 90 S Ct 1033; 25 L Ed 2d

312 (1970) (Harlan, J., concurring). There are, however, “certain special

concerns-- related to collateral review of state criminal convictions-- that affect

2

which cases are closed, for which retroactivity-related purposes, and under what

circumstances.” Id.

In Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989), the

United States Supreme Court set forth the federal standard for determining

whether a rule regarding criminal procedure should be applied retroactively to

cases in which a defendant’s conviction has become final. Teague established the

“general rule” that “new constitutional rules of criminal procedure will not be

applicable to those cases which have become final before the new rules are

announced.” Id. at 310. However, Teague laid down two exceptions to this

general rule: first, a new rule should be applied retroactively if it places “‘certain

kinds of primary, private individual conduct beyond the power of the criminal

law-making authority to proscribe,’” id. at 307 (citation omitted); and second, a

new rule should be applied retroactively “if it requires the observance of those

procedures that . . . are implicit in the concept of ordered liberty.” Id. (citations

and internal quotation marks omitted).

Thus, the first question under Teague is whether the rule in Halbert

constitutes a new rule. “‘[A] case announces a new rule when it breaks new

ground or imposes a new obligation on the States or the Federal Government.’”

Penry v Lynaugh, 492 US 302, 314; 109 S Ct 2934; 106 L Ed 2d 256 (1989)

(citation omitted). Deciding whether a rule is “new” requires a court to determine

“whether ‘a state court considering [the defendant's] claim at the time his

conviction became final would have felt compelled by existing precedent to

3

conclude that the rule [he] seeks was required by the Constitution.’” O'Dell v

Netherland, 521 US 151, 156; 117 S Ct 1969; 138 L Ed 2d 351 (1997) (emphasis

added and internal citations omitted). If a reasonable jurist would not have felt

compelled by existing precedent, then the rule is new. Beard v Banks, 542 US

406, 413; 124 S Ct 2504; 159 L Ed 2d 494 (2004). In other words, the relevant

question is not simply whether existing precedent might have supported the rule,

but whether the rule “was dictated by then-existing precedent.” Id. at 413

(emphasis in original).

We conclude that the rule in Halbert constitutes a new rule. Although

Halbert found support in the earlier United States Supreme Court decision of

Douglas v California, 372 US 353; 83 S Ct 814; 9 L Ed 2d 811 (1963), that case

did not clearly require the outcome in Halbert. Douglas held that when a state

grants a first appeal as of right, the state is required to appoint appellate counsel

for indigent defendants. Id. at 357. Because Michigan does not grant an appeal as

of right to a defendant who pleads guilty,1 and because the United States Supreme

Court had previously decided that appointment of appellate counsel is unnecessary

when an appellate court, such as a state’s highest court, has the discretion to

choose whether to reach the merits of a defendant’s appeal, Ross v Moffitt, 417 US

1
Defendants who seek to appeal their guilty pleas must file an application
for leave to appeal with the Court of Appeals. MCR 7.203(A)(1)(b).

4

600; 94 S Ct 2437; 41 L Ed 2d 341 (1974), a reasonable jurist could well conclude

that Douglas did not compel the result in Halbert.

Because “it is more difficult . . . to determine whether [the Supreme Court]

announce[d] a new rule when a decision extends the reasoning of [its] prior cases,”

Saffle v Parks, 494 US 484, 488; 110 S Ct 1257; 108 L Ed 2d 415 (1990), the

“new rule” principle is designed to “validate[] reasonable, good-faith

interpretations of existing precedents made by state courts even though they are

shown to be contrary to later decisions.” Butler v McKellar, 494 US 407, 414; 110

S Ct 1212; 108 L Ed 2d 347 (1990). In Halbert, the dissenting Supreme Court

justices argued against extending Douglas, further supporting the conclusion that

Douglas did not compel the result in Halbert and that this Court’s previous

interpretation was reasonable.

Because the rule in Halbert was new, the remaining question under Teague

is whether either of the two Teague exceptions applies. The first exception is

clearly inapplicable, as the rule in Halbert does not concern a rule that “‘forbid[s]

criminal punishment of certain primary conduct . . . [or] prohibit[s] a certain

category of punishment for a class of defendants because of their status or

offense.’” O’Dell, supra at 157 (citation omitted). Thus, the only issue is whether

Halbert constituted a “watershed” decision that involved “procedures . . . implicit

in the concept of ordered liberty.” Graham v Collins, 506 US 461, 478; 113 S Ct

892; 122 L Ed 2d 260 (1993) (citations and internal quotation marks omitted).

5

 The United States Supreme Court has repeatedly emphasized the limited

scope of the second Teague exception. The Court has observed that because any

such rule “would be so central to an accurate determination of innocence or guilt

[that it is] unlikely that many such components of basic due process have yet to

emerge, it should come as no surprise that we have yet to find a new rule that falls

under the second Teague exception.” Beard, supra at 417 (internal citations and

quotation marks omitted). The Supreme Court has referred to the right to counsel

set forth in Gideon v Wainwright, 372 US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963),

as an example of a rule that would fall into the second Teague exception. It is

significant that in referring to this example, the Supreme Court observed, “In

providing guidance as to what might fall within this exception, we have repeatedly

referred to the rule of Gideon (right to counsel), and only to this rule.” Beard,

supra at 417 (emphasis added and internal citation omitted).

Notably, the Sixth Amendment right to counsel articulated in Gideon and

its progeny has a constitutional basis distinct from that underlying the Douglas

line of cases addressing the right to counsel on appeal that are rooted in the Equal

Protection and Due Process clauses of the Fourteenth Amendment. Further,

considering that Halbert is unlikely to apply to any situation other than Michigan’s

unique legislative system of appeals from plea-based convictions, we agree with

the Sixth Circuit that “[i]t does not represent a shift in ‘bedrock procedural

elements’ and it cannot be said to be ‘on par’ with Gideon.” Simmons v Kapture,

474 F3d 869, 887 (CA 6, 2007) (Reeves, J., dissenting), adopted by Simmons v

6

Kapture, 516 F3d 450, 451 (CA 6, 2008) (holding that Halbert is not retroactive

under Teague).

Additionally, a state is not required to provide any appellate proceedings at

all for defendants who plead guilty. Halbert, supra at 610. In Goeke v Branch,

514 US 115; 115 S Ct 1275; 131 L Ed 2d 152 (1995), the Supreme Court held that

“[b]ecause due process does not require a State to provide appellate process at all,

a former fugitive’s right to appeal cannot be said to be so central to an accurate

determination of innocence or guilt as to fall within this exception . . . .” Id. at 120

(citations and internal quotations omitted).2 Considering these holdings, the

provision of appointed counsel for such a proceeding can hardly be said to be

“implicit in the concept of ordered liberty.” Accordingly, in our judgment,

Halbert cannot be construed as a “watershed” decision, neither of the Teague

exceptions applies, and Halbert thus is not retroactive under federal retroactivity

jurisprudence.

B. RETROACTIVITY UNDER STATE LAW

The conclusion that Halbert is not retroactive under federal law does not

end our analysis, however. A state may accord broader effect to a new rule of

2
“[A] State may not ‘bolt the door to equal justice’ to indigent defendants”
once it has provided an avenue of appeal. Halbert, supra at 610, quoting Griffin v
Illinois, 351 US 12, 24; 76 S Ct 585; 100 L Ed 891 (1956). This holding only
emphasizes our position that Halbert is not a “watershed” decision like Gideon
because Halbert is rooted in the Equal Protection and Due Process clauses of the
Fourteenth Amendment, rather than in the Sixth Amendment right to counsel.

7

criminal procedure than federal retroactivity jurisprudence accords. Danforth v

Minnesota, ___ US ___; 128 S Ct 1029, 1045; 169 L Ed 2d 859 (2008).3

Accordingly, we turn to the question of whether Halbert should be deemed

retroactive under state law. Michigan law has regularly declined to apply new

rules of criminal procedure to cases in which a defendant’s conviction has become

final. See Sexton, supra (requirement that the police inform a suspect when

retained counsel is available for consultation); People v Stevenson, 416 Mich 383;

331 NW2d 143 (1982) (abrogation of common-law “year and a day” rule); People

v Young, 410 Mich 363; 301 NW2d 803 (1981) (preconviction filing of habitual

offender notice); People v Smith, 405 Mich 418, 433; 275 NW2d 466 (1979)

(repeal of criminal sexual psychopath statute barring criminal action against those

adjudicated criminal sexual psychopaths); People v Markham, 397 Mich 530; 245

NW2d 41 (1976) (double jeopardy “same transaction” test); People v Rich, 397

Mich 399; 245 NW2d 24 (1976) (erroneous “capacity standard” jury instruction);

People v Butler, 387 Mich 1; 195 NW2d 268 (1972) (waiver of a defendant’s

3
To conclude that Teague was intended to apply strictly to federal habeas
review, and not to state court proceedings, Danforth argued that: (1) Teague was
silent regarding a state’s ability to give broader effect to federal constitutional
decisions, Danforth, supra at 1039; (2) Teague was based on the federal habeas
statute, 28 USC 2241 et seq., a “statutory authority that extends only to federal
courts,” Danforth, supra at 1040; and (3) Teague relied on considerations of comity
and federalism, which “are [concerns] unique to federal habeas review of state
convictions.” Id. at 1041 (emphasis in original). Accordingly, the analysis in
Teague binds only federal courts on habeas review, and a state court may use a
different test to give broader effect to a new rule of criminal procedure established
by the United States Supreme Court.

8

constitutional rights in taking a guilty plea); Jensen v Menominee Circuit Judge,

382 Mich 535; 170 NW2d 836 (1969) (constitutional right to appeal in criminal

cases); People v Woods, 382 Mich 128; 169 NW2d 473 (1969) (custodial

interrogation procedures); People v Fordyce, 378 Mich 208; 144 NW2d 340

(1966) (custodial interrogation procedures). In Sexton, we considered the

following three factors to determine whether a new rule of criminal procedure

should be applied retroactively:

(1) the purpose of the new rules; (2) the general reliance on
the old rule[;] and (3) the effect of retroactive application of the new
rule on the administration of justice. [Sexton, supra at 60-61, citing
People v Hampton, 384 Mich 669, 674; 187 NW2d 404 (1971).]

Under the “purpose” prong, a law may be applied retroactively when it “‘concerns

the ascertainment of guilt or innocence;’” however, “‘a new rule of procedure . . .

which does not affect the integrity of the fact-finding process should be given

prospective effect.’” Id. at 63, quoting Young, supra at 367. By pleading guilty,

defendants are not contesting their guilt, but admitting it freely. Thus, the

appointment of counsel on appeal does not concern the ascertainment of guilt or

innocence. See Goeke, supra at 120. Rather, an appeal from a guilty plea

concerns only the procedures of the plea process; the defendant has already

admitted substantive guilt while represented by counsel. It is hard to imagine a

more dispositive process by which guilt can be accurately determined, and in

which the appellate process becomes less central to an accurate determination of

guilt, than that in which a full admission to criminal conduct has come from the

9

mouth of the defendant himself under oath,4 and in an environment in which the

defendant has been accorded every protection against a coerced or mistaken

confession. Consequently, the first Sexton prong counsels against retroactivity.

The second Sexton prong, which concerns the “general reliance on the old

rule,” does not, in our judgment, strongly counsel either way in this case. When

considering “reliance,” a court examines whether individual persons or entities

have been “adversely positioned . . . in reliance” on the old rule. Rowland v

Washtenaw Co Rd Comm, 477 Mich 197, 221; 731 NW2d 41 (2007). The dissent

implies that defendants who pleaded guilty between 1994 and 2005, as a class,

were “penalized by the general reliance” on the old rule.5 Post at 10-11. We

disagree. To be considered to have detrimentally relied on the old rule, a

defendant must have relied on the rule in not pursuing an appeal and have suffered

harm as a result of that reliance. We recognize that ascertaining the precise

number of defendants who meet this standard is impossible, but clearly all

defendants who pleaded guilty between 1994 and 2005 do not meet this standard.

Indeed, appeals of guilty pleas before the old rule indicate that it is likely that very

few do.

4
Since March 1, 1995, this Court has required all defendants who plead
guilty to be placed under oath before doing so. MCR 6.302(A).
5
1994 PA 374, which implemented Proposal B, became effective December
27, 1994.

10

 First, only a very small percentage of defendants who pleaded guilty before

the old rule became effective actually appealed their pleas. Before the old rule

was implemented in 1994, an estimated 89% to 94% of defendants who pleaded

guilty did not appeal their pleas.6 During this period, indigent defendants were

appointed appellate counsel if they chose to pursue an appeal. Yet, fewer than one

in ten of all defendants who pleaded guilty actually decided to appeal their pleas.

The large number of defendants who pleaded guilty but did not seek appeal can be

explained by a variety of factors, most important of which are the lack of an

appealable issue after the plea and the risk inherent in appealing a guilty plea.7

Therefore, it can be assumed that most defendants who pleaded guilty between

1994 and 2005 and did not appeal, rather than not appealing because of reliance on

6
The State Appellate Defender’s Office estimated, on the basis of the cases
it handled, that less than six percent of guilty pleas were appealed. House
Legislative Analysis Section, Second Analysis, 1994 PA 374, 375 (January 5,
1995), p 2. The House Legislative Analysis Section’s November 2, 1993, analysis
stated that “[e]stimates put the proportion of people who appeal after pleading
guilty at 11 percent or substantially less.” House Legislative Analysis Section,
First Analysis, House Bill 4070, 4071 (November 2, 1993) (“HB 4070-4071
Analysis”), p 3.
7
Under MCR 6.312, if an appellate court vacates a defendant’s guilty plea,
“the case may proceed to trial on any charges that had been brought or that could
have been brought against the defendant if the plea had not been entered,”
including charges more severe then the charge or charges to which the defendant
pleaded guilty or charges that the prosecutor agreed to drop in exchange for the
plea agreement. The risk of proceeding to trial on more serious or additional
charges often persuades defendants not to pursue a plea appeal. Robertson, Felony
Plea Appeals in Michigan – 1992, (Lansing: Michigan Appellate Assigned Counsel
System, 1992), p 2. See also People v Sutton, 158 Mich App 755; 405 NW2d 209
(1987).

11

the old rule, did not appeal because of factors unrelated to, and existing before, the

old rule.

Second, a defendant who relied on the old rule in not filing an appeal must

also have suffered actual harm from that reliance in order to have “detrimentally

relied” on the old rule. That is, the old rule would have had to preclude defendant

from filing an appeal that would have resulted in some form of relief. Out of that

small number of defendants who pleaded guilty before the old rule and

subsequently appealed the plea, only a very limited number received relief on

appeal. In 1994, before the old rule was adopted, the Court of Appeals estimated

that only three to four percent of guilty plea cases that came before it resulted in

some form of relief.8 The State Appellate Defender Office (SADO), however,

estimates that approximately 27% of pleading indigent defendants whom it

represented received some measure of relief.9

Accordingly, the number of pleading defendants who could be said to have

detrimentally relied on the old rule would range somewhere between 0.18% (6% x

8
House Legislative Analysis Section, First Analysis, Ballot Proposal B,
1994 General Election, (October 14, 1994), p 4.
9
HB 4070-4071 Analysis, supra at 2; Senate Fiscal Agency, First Analysis,
S.J.R. D (Feb 18, 1993), p 2. According to SADO, 42% of the guilty pleas it
appealed were entirely dismissed without being heard. Cases “not heard” were
typically handled by a “short, simple affirmation of the trial court’s decision.” Id.
For the remaining 58% that were not dismissed without a hearing, 47% of those
appeals received relief. Thus, using the SADO figures, of every six SADO-
represented, guilty-pleading defendants who appealed, approximately 1.6, or 27%,
secured some measure of relief ((42% x 0%) + (58% x 47%)).

12

3%) and 2.97% (11% x 27%), combining the lowest and highest Court of

Appeals/House Legislative Analysis and SADO figures. Thus, there is no reason

why it should not be assumed that, at a minimum, 97% to 99% of the defendants

who pleaded guilty under the old rule would not have received relief under the

new rule.10 While it cannot be disputed that some number of defendants would

receive relief if Halbert were made retroactive,11 this would be true of extending

any new rule retroactively, yet this is not generally done. Instead, we must

consider, as best as possible, the extent of the detrimental reliance on the old rule,

and then balance this against the other Sexton factors, as well as against the fact

that each defendant who pleaded guilty has received all the rights under the law to

which he or she was entitled at the time. Here, we conclude that the extent of the

detrimental reliance is remarkably minimal and, as explained above and below,

does not outweigh the other Sexton factors that clearly counsel against retroactive

application.

10
Moreover, if anything, these figures overstate the number of defendants
who adversely relied on the old rule. A defendant, for example, who has received
relief in the form of resentencing, or the vacating of a plea, has not necessarily been
adversely affected if he or she ultimately receives the same sentence after
resentencing or is reconvicted after trial.
11
Appellate “relief,” of course, far more often than not consists of such
things as requiring judicial rearticulation of a sentence, affording additional rights
of allocution, correcting a presentence report, adjusting restitution amounts,
clarifying the application of guidelines, and vacating consecutive sentences, as
opposed to reversing a conviction or reducing a sentence.

13

 Finally, affording appointed counsel to defendants whose appeals became

final before Halbert would have a markedly adverse effect on the administration

of justice, the third Sexton prong. The state’s strong interest in finality of the

criminal justice process would be undermined as presumably significant numbers

of the incarcerated population would be entitled to avail themselves of appointed

counsel and new appeals, despite having knowingly and intelligently pleaded

guilty to criminal conduct while represented by counsel.

“[F]inality of state convictions is a state interest . . . that States should be

free to evaluate, and weigh the importance of, when prisoners held in state custody

are seeking a remedy for a violation of federal rights by their lower courts.”

Danforth, supra at 1041 (emphasis in original). The principle of finality “is

essential to the operation of our criminal justice system.” Teague, supra at 309.

The state’s interest in finality discourages the advent of new rules from

“continually forc[ing] the State[] to marshal resources in order to keep in prison

defendants whose trials and appeals conformed to then-existing constitutional

standards,” id. at 310 (emphasis omitted), and also “serves the State's goal of

rehabilitating those who commit crimes because ‘[rehabilitation] demands that the

convicted defendant realize that he is justly subject to sanction, that he stands in

need of rehabilitation.’” Kuhlmann v Wilson, 477 US 436, 453; 106 S Ct 2616; 91

L Ed 2d 364 (1986), quoting Engle v Isaac, 456 US 107, 128 n 32; 102 S Ct 1558;

71 L Ed 2d 783 (1982) (citation and quotation marks omitted). Accordingly,

14

applying Halbert retroactively to cases in which a conviction has become final

would have a markedly adverse effect on the administration of justice.

Thus, although retroactive application of Halbert would potentially provide

a small number of defendants with some form of relief, this does not outweigh the

certainty that by applying Halbert retroactively, many guilty-pleading defendants

whose convictions have become final would inundate the appellate process with

new appeals. In light of the limited judicial resources of the state, it is our

judgment that those resources would be better preserved for defendants currently

charged-- some of whom may be innocent or otherwise entitled to relief-- than for

defendants who have knowingly pleaded guilty and presumably accepted the

consequences of their decisions. Thus, the third prong weighs far more heavily

against retroactive application than the second prong weighs for retroactive

application. Considered together, all of the Sexton factors, therefore, strongly

counsel against applying Halbert retroactively under state law to cases in which a

defendant’s conviction has become final.

IV. FURTHER RESPONSE TO THE DISSENT

(1) The dissent asserts that we are “swerving and dodging” decisions of the

United States Supreme Court by “refusing” to make Halbert retroactive in order to

“deny indigent defendants access to justice.” Post at 1. The premise of this

overheated assertion is that the United States Supreme Court has already rejected

our reasoning, but its repetition by the dissent does not make this so. We have set

forth what we think the law is, and we have followed Teague and other relevant

15

decisions to their logical and reasonable conclusions. Whatever the dissent's

personal conceptions of what should be required by the Constitution, we have

applied what this Court and the United States Supreme Court have said the

Constitution requires.

(2) The dissent describes us as “arbitrarily” cutting off constitutional relief

to defendants whose plea-based convictions became final between 1994 and 2005.

We fail to see what is “arbitrary” about applying existing precedent to determine

whether Halbert is retroactive and, having concluded that it is not, employing the

date of the Halbert decision to determine who precisely is entitled to the benefits

of that decision. Using the date of a decision that has granted a right as the

starting date for entitlement to that right has long been the standard procedure of

this Court. See Woods, supra at 138-139.

(3) The dissent believes that because Halbert overruled this Court’s

determination in People v Bulger, 462 Mich 495; 614 NW2d 103 (2000), that

MCL 770.3a was constitutional, his position in the instant case should prevail.

This overlooks that the issues in Bulger and this case are simply different. Unlike

Bulger, this case does not concern whether the right to first-tier appellate counsel

exists; Halbert has decided this. Rather, the present issue concerns the extent to

which Halbert is retroactive. Indeed, in Bulger, we expressly declined to address

the constitutionality of MCL 770.3a because it did not apply to the defendant in

that case. Id. at 506 (“Because this new statute does not apply to defendant, the

16

question of its constitutionality is not before us.”).12 While the analysis employed

by the Supreme Court in recognizing a constitutional right may well be relevant in

some instances in assessing the right’s retroactivity, it will rarely be conclusive.

Indeed, Teague and Danforth themselves confirm that assessments of retroactivity

are independent of the recognition of the right itself and that the two

determinations involve different questions and require the evaluation of different

interests.

(4) The dissent concludes that precedent “compelled” the result in Halbert

by declaring the holding in Ross to be so clear that it “does not support a claim

that a reasonable jurist could conclude that the rule of Halbert was not

compelled.” Post at 5. We think the simple fact that Halbert was a 6 to 3

decision, and reversed a majority of this Court, makes sufficiently clear that

reasonable jurists could conclude that Halbert was not “compelled.” Further, even

the trial court that granted conditional habeas relief in Bulger recognized that this

Court’s position was “not contrary to any clearly established Supreme Court

precedent,” Bulger v Curtis, 328 F Supp 2d 692, 703 (ED Mich, 2004) (emphasis

added).13

12
Only later, in People v Harris, 470 Mich 882 (2004), did we hold that,
“[p]ursuant to the analysis provided by this Court in Bulger, MCL 770.3a is
constitutional.”
13
In light of the Sixth Circuit’s conclusion in Simmons that Halbert is not
retroactive under Teague, and the dissent’s assertion that “Teague does not control

17

 (5) The dissent complains that we “rel[y] on the presumption that all

defendants who plead guilty are indeed guilty.” Post at 8. When a defendant

pleads guilty, he admits guilt under oath. We freely admit that there is some sense

on our part that “defendants who plead guilty are indeed guilty.” By taking an

oath, defendants give courts permission to presume that admissions of guilt are

true. This Court has made clear that after conviction, defendants are no longer

cloaked with a presumption of innocence, People v Mateo, 453 Mich 203, 222;

551 NW2d 891 (1996) (Weaver, J., concurring), thereby permitting this Court to

presume that those who have pleaded guilty are, in fact, guilty.

More importantly, Halbert did not address the ascertainment of guilt, but

rather discussed the complexity of appeals and why counsel is often required to

navigate this process. Halbert, supra at 621 (“Navigating the appellate process

without a lawyer’s assistance is a perilous endeavor for a layperson . . . .”).

Although the opinion refers to “‘myriad and often complicated’ substantive

issues” potentially involved in appeals, at no time does it equate these issues with

the ascertainment of guilt. Id. (citation omitted).

Moreover, not only are several of the potential appellate issues that the

dissent identifies clearly unrelated to questions of guilt (jurisdictional defects,

double jeopardy claims, and claims that the state had no right to proceed such as

having charged a defendant under an inapplicable statute), but it is nonsensical for

the measure of retroactivity applied by a state court,” post at 7, we see no reason to
further discuss the dissent’s Teague analysis.

18

the dissent to conclude that the Supreme Court determined that claims involving

“‘constitutional defects that are irrelevant to [a defendant’s] factual guilt’” apply

to the guilt or innocence of a defendant. Post at 9 n 2, quoting Bulger, supra at

561 (Cavanagh, J., dissenting) (emphasis added).

Although we recognize that such procedural matters may well be essential

and, in some cases, constitutionally mandated, their existence does not

automatically convert them into issues concerning guilt or innocence. The United

States Constitution provides criminal defendants the right to due process of law.

US Const, Am V. The question of whether a defendant has received due process

is different in many contexts from whether a given procedure affects the “integrity

of the fact-finding process.” Sexton, supra at 63 (internal citation and quotation

marks omitted). By conflating, as the dissent has done, whether a procedure is

necessary for due process with whether a procedure ascertains a defendant’s guilt

or innocence, the dissent would compel that virtually all new rules of criminal

procedure become retroactive. Perhaps the dissent could explain what new rules

would not be retroactive under the analysis that he sets forth. And, while such

automatic retroactivity may be the dissent’s personal preference, Sexton’s and

Teague’s very existence refute that proposition as the preference of the law.

V. CONCLUSION

For these reasons, we hold that Halbert does not apply retroactively to

cases in which a defendant’s conviction has become final, either under federal or

19

state retroactivity jurisprudence. Accordingly, we affirm the trial court’s denial of

defendant’s motion for relief from judgment.

Stephen J. Markman
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.

20

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 129693

MARK ALLEN MAXSON,

Defendant-Appellant.

CAVANAGH, J. (dissenting).

Once again, the majority “swerves and dodges the decisions of the United

States Supreme Court” to deny indigent defendants access to justice, this time by

refusing to retroactively apply the rule of Halbert v Michigan, 545 US 605; 125 S

Ct 2582; 162 L Ed 2d 552 (2005). See People v Bulger, 462 Mich 495, 522; 614

NW2d 103 (2000) (Cavanagh, J., dissenting). Ironically, the majority now applies

the same reasoning that the United States Supreme Court rejected in Halbert to

conclude that Halbert should not apply retroactively. I must respectfully dissent.

Before 1994, indigent defendants in Michigan who had pleaded guilty

could appeal as of right and were commonly provided with appellate counsel.

See, e.g., People v Ginther, 390 Mich 436, 444; 212 NW2d 922 (1973). In 1994,

the Michigan Constitution was amended to provide that appeal from a guilty or

nolo contendere plea was “by leave of the court.” Const 1963, art 1, § 20. Some

trial courts began to interpret this amendment as abolishing the right to counsel for
indigent defendants who had pleaded guilty. Halbert, 545 US at 609. This

interpretation was codified by the Legislature in MCL 770.3a, which stated that

defendants who plead guilty “shall not have appellate counsel appointed for

review,” with certain exceptions.

A majority of this Court upheld the constitutionality of MCL 770.3a in

People v Harris, 470 Mich 882 (2004) (relying on the analysis of Bulger, supra).

The majority came to this conclusion by reasoning that first-tier review of plea-

based convictions is discretionary, that plea proceedings are simpler than

proceedings at trial, and that a defendant who enters a guilty plea accedes to the

state’s interest in the finality of criminal proceedings. Bulger, 462 Mich at 508,

516-517; see also Halbert, 545 US at 613-614. I dissented, urging the United

States Supreme Court to “correct the constitutional miscarriage committed by the

majority” and to “issue the decision that is uniformly directed by its past

opinions.” Bulger, 462 Mich at 522-523 (Cavanagh, J., dissenting).

The United States Supreme Court did indeed correct the error of Bulger and

Harris in its 2005 Halbert decision. There the Court held that MCL 770.3a was

unconstitutional and restored the constitutional right to the appointment of counsel

for first-tier appellate review for indigent defendants in Michigan who had pleaded

guilty. Now the question is whether indigent defendants whose plea-based

convictions became final between 1994 and 2005 should have the constitutional

relief Halbert demands by retroactive application of that decision. The majority

2

arbitrarily cuts off constitutional relief to these indigent defendants, applying the

same faulty reasoning it used to deny their constitutional rights in the first place.

The majority concludes that Halbert should not apply retroactively under

Teague v Lane, 489 US 288; 109 S Ct 1060; 103 L Ed 2d 334 (1989). I observe

first that Teague is inapplicable to this case. The United States Supreme Court has

stated that “[a] close reading of the Teague opinion makes clear that the rule it

established was tailored to the unique context of federal habeas and therefore had

no bearing on whether States could provide broader relief in their own

postconviction proceedings than required by that opinion.” Danforth v Minnesota,

___ US ___; 128 S Ct 1029, 1039; 169 L Ed 2d 859 (2008) (emphasis added).

The Court went on to say that “[i]t is a matter that States should be free to

evaluate, and weigh the importance of, when prisoners held in state custody are

seeking a remedy for a violation of federal rights by their lower courts.” Id. at

___, 128 S Ct at 1041. Thus, Teague does not restrain this Court from providing a

remedy that it previously wrongfully denied.

Nonetheless, I believe that even Teague counsels retroactive application in

this case. Teague held that, generally, courts should not retroactively apply rules

of criminal procedure that are “new.” The rule of Halbert is not new. First, and

most obviously, the rule of Halbert is not new because it reinstated an old rule.

See, e.g., Ginther, supra. Halbert merely restores the law that existed in Michigan

before 1994. Thus, it is not new.

3

 A rule may be new, under Teague, if “the result was not dictated by

precedent existing at the time the defendant’s conviction became final.” Teague,

489 US at 301 (opinion of O’Connor, J.). As I stated in Bulger, I believe that the

result of Halbert was uniformly directed by the past decisions of United States

Supreme Court. Bulger, 462 Mich at 522-523 (Cavanagh, J., dissenting). A rule

that is uniformly directed is not new.

The majority opinion concludes that the rule of Halbert is not compelled,

and thus new, because appeal from a guilty plea in Michigan is by leave and

discretionary. It reasons that the application of Douglas v California, 372 US 353;

83 S Ct 814; 9 L Ed 2d 811 (1963), was not dictated because Douglas involved a

first appeal as of right, while the first appeal of plea-based convictions in

Michigan is discretionary. The majority opinion further reasons that Ross v

Moffitt, 417 US 600; 94 S Ct 2437; 41 L Ed 2d 341 (1974), appears to apply

because it held that appointment of counsel was not required when appeal is made

to a court that has discretion “to choose whether to reach the merits of a

defendant’s appeal.” Ante at 4. First, I observe that this very reasoning was

rejected by the United States Supreme Court in Halbert. The Court stated that

“Halbert’s case is properly ranked with Douglas rather than Ross” and, thus, held

“that the Due Process and Equal Protection Clauses require the appointment of

counsel for defendants, convicted on their pleas, who seek access to first-tier

review in the Michigan Court of Appeals.” Halbert, 545 US at 610 (emphasis

added).

4

 Second, the fact that the defendant’s appeal in Douglas was as of right was

irrelevant to the outcome of that case. Rather, the critical issue was the fact that,

“[w]hether formally categorized as the decision of an appeal or the disposal of a

leave application, the Court of Appeals’ ruling on a plea-convicted defendant’s

claims provides the first, and likely the only, direct review the defendant’s

conviction and sentence will receive.” Halbert, 545 US at 619. In Ross, the

discretion involved was irrespective of the merits. As the Ross Court stated, its

ruling applied to appellate courts that may deny leave even when they conclude

that the decision on the merits in the court below was incorrect. Ross, 417 US at

615. That is not the case when a defendant seeks first-tier review in the Michigan

Court of Appeals. See Bulger, 462 Mich at 541-542 (Cavanagh, J., dissenting);

Halbert, 545 US at 617 (“Michigan’s intermediate appellate court looks to the

merits of the claims made in the application”). Further, Ross made clear that its

decision applied when a defendant had already “received the benefit of counsel in

examining the record of his trial and in preparing an appellate brief on his behalf

for the state Court of Appeals” and when “a defendant’s claims of error are

organized and presented in a lawyerlike fashion to the Court of Appeals . . . .”

Ross, 417 US at 614-615. That is not the case when a defendant seeks first-tier

review in the Michigan Court of Appeals.

Thus, this precedent does not support a claim that a reasonable jurist could

conclude that the rule of Halbert was not compelled. To the contrary, “[t]he

Michigan Supreme Court’s reading [of] Ross to permit the denial of counsel to an

5

indigent defendant on appeal solely because the appeal is discretionary [is] not a

reasonable application of Supreme Court precedent.” Bulger v Curtis, 328 F Supp

2d 692, 702 (ED Mich, 2004). Because I believe that the rule of Halbert was, in

fact, compelled by precedent, I believe that the rule is not new. Thus, Halbert

should apply retroactively. Even if the rule of Halbert were new, it would

represent a “watershed” decision, which requires retroactive application under

Teague. Teague states that “a new rule should be applied retroactively if it

requires the observance of those procedures that . . . are implicit in the concept of

ordered liberty.” Teague, 489 US at 307, 311 (opinion of O’Connor, J.) (internal

citations omitted). At issue here is meaningful access to the courts, Ross, 417 US

at 615, and the essential fairness of state-ordered proceedings, Halbert, 545 US at

611. I believe that these are matters that are “implicit in the concept of ordered

liberty.”

The majority supports its finding to the contrary with the assertion that a

state is not required to provide “any appellate proceedings at all for defendants

who plead guilty.” Again, the United States Supreme Court rejected this

reasoning in Halbert. The Court reminded that while “[t]he Federal Constitution

imposes on the States no obligation to provide appellate review of criminal

convictions,” nonetheless, once provided, “a State may not bolt the door to equal

justice to indigent defendants.” Halbert, 545 US at 610 (internal citations and

quotation marks omitted). I conclude that the rule of Halbert fits this exception to

Teague. It should apply retroactively.

6

 This conclusion is supported by the fact that Douglas, the case on which the

United States Supreme Court based its Halbert decision, was applied retroactively.

McConnell v Rhay, 393 US 2, 3; 89 S Ct 32; 21 L Ed 2d 2 (1968). Observing this

application, the Supreme Court grouped Douglas with Gideon v Wainwright, 372

US 335; 83 S Ct 792; 9 L Ed 2d 799 (1963), as cases implicating the right to

counsel and addressing a right that “relates to the very integrity of the fact-finding

process.” McConnell, 393 US at 3 (internal citation and quotation marks omitted).

Thus, the majority opinion’s attempt to distinguish this case from the sort that

announces a “watershed” rule is incorrect. Ante at 6-7. Douglas was decided on

equal protection and due process grounds, just like Halbert. Yet the Supreme

Court identified Douglas as implicating the same right as Gideon under a different

constitutional provision. Thus, Douglas would suggest that, under Teague,

Halbert is a “watershed” rule requiring retroactive application irrespective of the

specific constitutional ground on which it was decided.

But, as noted, Teague does not control the measure of retroactivity applied

by a state court. Rather, Michigan jurisprudence provides the tools for assessment

in this case.1 The majority applies the factors stated in People v Sexton, 458 Mich

1
I am aware of the decision in Simmons v Kapture, 516 F3d 450 (CA 6,
2008). I am also aware that the petition for writ of certiorari was denied in
Houlihan v Michigan, ___ US ___; ___ S Ct ___: ___ L Ed 2d ___; 2008 WL
2810188 (October 6, 2008). As noted earlier, these decisions do not prohibit or
affect the application of state law to this case.

7

43, 580 NW2d 404 (1998), to conclude that retroactivity is not required in this

case. I believe that the Sexton factors direct the opposite result.

The first Sexton factor, the purpose factor, states that a law may be applied

retroactively when it “concerns the ascertainment of guilt or innocence”; however,

“a new rule of procedure . . . which does not affect the integrity of the fact-finding

process should be given prospective effect.” Id. at 63 (internal citations and

quotation marks omitted). The majority concludes that this factor is inapplicable

because “the appointment of counsel on appeal does not concern the ascertainment

of guilt or innocence.” Ante at 9. I strongly disagree. I believe the ascertainment

of guilt or innocence is at stake here because “‘a correct adjudication of guilt’

involves more than just an admission of guilt.” Bulger, 462 Mich at 560

(Cavanagh, J., dissenting); see also MCR 6.302. “Appeals after guilty pleas, too,

directly implicate a procedure without which the accuracy of a conviction cannot

be assured.” Simmons v Kapture, 516 F3d 450, 457 (CA 6, 2008) (Martin, J.,

dissenting), citing Halbert, 545 US at 617. Halbert rests precisely on the fact that

a defendant’s first-tier appeal from a plea-based conviction involves error-

correction. In other words, a defendant’s guilt or innocence is at stake. Thus, the

purpose prong directs retroactive application of Halbert.

I observe further that the majority opinion relies on the presumption that all

defendants who plead guilty are indeed guilty. Ante at 9. As I pointed out in

Bulger, this misses the entire purpose of a first-tier appeal from a guilty plea,

where factors relevant to guilt—such as coercion, ineffective assistance of

8

counsel, and mental capacity—are meant to be adjudicated.2 Correcting these

errors is relevant precisely to the question of guilt or innocence. In McConnell,

supra, the United States Supreme Court stated the significance of the issue at

stake:

This Court’s decisions on a criminal defendant’s right to
counsel at trial, Gideon v. Wainwright, 372 US 335 (1963); at certain
arraignments, Hamilton v. Alabama, 368 US 52 [82 S Ct 157; 7 L Ed
2d 114] (1961); and on appeal, Douglas v. California, 372 US 353
(1963), have been applied retroactively. The right to counsel at
sentencing is no different. As in these other cases, the right being
asserted relates to the very integrity of the fact-finding process.
[McConnell, 393 US at 3 (citations and quotation marks omitted).]

The Supreme Court in Halbert observed that the error-correction function of a

first-tier review in the Michigan Court of Appeals was crucial to its conclusions in

that case. Halbert, 545 US at 617. Where the very integrity of the fact-finding

process is at stake, retroactive application is directed. Further, the majority’s

position here is another way of stating that a defendant who pleads guilty accedes

2
In greater detail, I stated that appeal from a plea-based conviction may
involve

constitutional defects that are irrelevant to [a defendant’s] factual
guilt, double jeopardy claims requiring no further factual record,
jurisdictional defects, challenges to the sufficiency of the evidence at
the preliminary examination, preserved entrapment claims, mental
competency claims, factual basis claims, claims that the state had no
right to proceed in the first place, including claims that a defendant
was charged under an inapplicable statute, and claims of ineffective
assistance of counsel. [Bulger, 462 Mich at 561 (Cavanagh, J.,
dissenting) (citations omitted).]

9

to the state’s interest in finality, a proposition the United States Supreme Court

rejected in Halbert. Id. at 623-624.

The second Sexton factor is also implicated. This factor addresses the

“general reliance on the old rule.” Sexton, 458 Mich at 60. Addressing this factor,

the Sexton Court stated that “[j]udicial decisions are generally given complete

retroactive effect unless the decisions are unexpected or indefensible.” Id. at 63-

64, citing People v Doyle, 451 Mich 93, 104; 545 NW2d 627 (1996). As

exhaustively demonstrated in Halbert, this rule is neither “unexpected” nor

“indefensible.”

In this case, injustice will result if Halbert is not applied retroactively. The

majority’s decision in Bulger left indigent defendants who pleaded guilty with a

“meaningless ritual in our Court of Appeals.” Bulger, 462 Mich at 581

(Cavanagh, J., dissenting). Failure to apply Halbert retroactively means that for a

“small group of people arbitrarily caught between Michigan’s own protections

[before 1994] and the protection offered by Halbert, the ‘meaningless ritual’ of

indigent appeals continues to be a harsh and unjust reality . . . .” Simmons, 516

F3d at 458 (Martin, J., dissenting). As the United States Supreme Court stated in

Douglas, the case on which it relied for the rule of Halbert, “When society acts to

deprive one of its members of his life, liberty or property, it takes its most

awesome steps.” Douglas, 372 US at 358 n 2 (citation and quotation marks

omitted). Unless Halbert is applied retroactively, defendants whose plea-based

convictions became final during the arbitrary period between 1994 and 2005 will

10

be penalized by the general reliance on an unconstitutional ruling of this Court.

The second factor of Sexton directs retroactive application of Halbert.

Finally, the effect on the administration of justice, the third Sexton factor,

requires retroactive application. The very system of justice administered by this

Court rests on the fair application of fundamental rights, such as the right to

counsel on first-tier appellate review. As the Supreme Court observed in Douglas:

No general respect for, nor adherence to, the law as a whole
can well be expected without judicial recognition of the paramount
need for prompt, eminently fair and sober criminal law procedures.
The methods we employ in the enforcement of our criminal law have
aptly been called the measures by which the quality of our
civilization may be judged.” [Douglas, 372 US at 358 n 2, quoting
Coppedge v United States, 369 US 438, 449; 82 S Ct 917; 8 L Ed 2d
21 (1962).]

The majority concludes that the effect on the administration of justice

counsels against retroactivity because “the state’s strong interest in finality of the

criminal justice process would be undermined.” Ante at 14. In Halbert, the

United States Supreme Court found this argument insufficient to support the

denial of appellate counsel to defendants who had pleaded guilty. Halbert, 545

US at 623. Further, the majority’s contention that retroactive application of

Halbert would “inundate the appellate process with new appeals” is speculative.

Ante at 15. As the majority observes, only a small percentage of defendants who

pleaded guilty availed themselves of appointed counsel to seek an appeal before

such appointment was precluded by the unconstitutional rule of MCL 770.3a.

Ante at 12-13. Also, appointed counsel would be prohibited from asserting

11

frivolous claims for appeal by Rule 3.1 of the Michigan Rules of Professional

Conduct. And the Court of Appeals retains discretion on whether to grant leave to

hear appeals from guilty pleas.3 Const 1963, art 1, § 20. Finally, as the majority

also observes, a defendant must consider the risk that an adverse ruling on appeal

may result in a more severe penalty. Ante at 11; MCR 6.312. Together, these

factors suggest that only a small number of cases with genuine and substantial

issues for appeal will receive full consideration by our state appellate courts. But

even if the number of appeals would be great, as the majority speculates,

defendants validly asserting claims of substantial error should be heard in our

appellate courts.

It strikes me as an ironic twist to apply the invalid reasoning that the

majority originally used in attempting to justify denying these defendants their

constitutional right to now deny them review retroactively. I see no reason to

deny constitutional rights to defendants on the arbitrary basis that their convictions

became final between 1994 and 2005. On the contrary, I believe that failure to

3
Of course, as an error-correcting court, the Court of Appeals must conduct
some analysis of each application for leave to appeal before exercising its
discretion on whether to hear each case. This analysis is evidently less
burdensome than actually hearing an appeal. Additionally, the Court would have
the advantage of reviewing arguments that have been researched and briefed by
counsel.

12

apply the rule of Halbert retroactively is unreasonable and constitutionally

unconscionable. I must respectfully dissent.

Michael F. Cavanagh
Marilyn Kelly

13