dissenting.
DISSENT
In discussing whether the equal protection component of our Federal Constitution requires the appointment of counsel to help indigent defendants prepare applications for review in the context of discretionary appeals, the Supreme Court has noted, “The question is not one of absolutes, but one of degrees.” Ross v. Moffitt, 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). In this close case, I believe that the Majority Opinion cites to the proper authority and asks all of the right questions en route to its conclusion. With all due respect, however, I believe that the protections provided by the Michigan statute at issue are sufficient to provide indigent defendants with meaningful access to the appellate system as defined by Ross. Accordingly, I dissent.
The provisions of the challenged statute read as follows:
Sec. 3a. (1) Except as provided in subsections (2) and (3), 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.
(2) The trial court shall appoint appellate counsel for an indigent defendant who pleads guilty, guilty but mentally ill, or nolo contendere if any of the following apply:
(a) The prosecuting attorney seeks leave to appeal.
(b) The defendant’s sentence exceeds the upper limit of the minimum sentence range of the applicable sentencing guidelines.
*713(c) The court of appeals or the supreme court grants the defendant’s application for leave to appeal.
(d) The defendant seeks leave to appeal a conditional plea under Michigan Court Rule 6.301(C)(2) or its successor rule.
(3) The trial court may appoint appellate counsel for an indigent defendant who pleads guilty, guilty but mentally ill, or nolo contendere if all of the following apply:
(a) The defendant seeks leave to appeal a sentence based upon an alleged improper scoring of an offense variable or a prior record variable.
(b) The defendant objected to the scoring or otherwise preserved the matter for appeal.
(c) The sentence imposed by the court constitutes an upward departure from the upper limit of the minimum sentence range that the defendant alleges should have been scored.
(4) While establishing that a plea of guilty, guilty but mentally ill, or nolo contendere was made understanding^ and voluntarily under Michigan Court Rule 6.302 or its successor rule, and before accepting the plea, the court shall advise the defendant that, except as otherwise provided in this section, if the plea is accepted by the court, the defendant waives the right to have an attorney appointed at public expense to assist in filing an application for leave to appeal or to assist with other postconviction remedies, and shall determine whether the defendant understands the waiver. Upon sentencing, the court shall furnish the defendant with a form developed by the state court administrative office that is nontechnical and easily understood and that the defendant may complete and file as an application for leave to appeal.
Mich. Comp. Laws § 770.3a. By its own terms, the statute carves out significant exceptions to the denial of counsel to indigent defendants who have pleaded guilty. These exceptions are designed to protect a defendant in those situations where he has the most at stake: when the prosecutor appeals; when the sentence falls above the sentencing range; and when he has preserved an issue by entering into a conditional plea. We note that the Statute requires appointment of counsel under these circumstances.
In addition, the statute accords the trial court discretion to appoint counsel when there has been a dispute about the manner in which the sentence has been calculated or when an issue has otherwise been preserved for appeal. Furthermore, the statute seeks to protect a defendant from waiving his rights to counsel unwittingly by requiring the court to explain the implications of a guilty plea with respect to appointment of counsel. Of course, the trial court is constitutionally required to ensure that a plea is entered knowingly; nonetheless, a defendant’s attention is explicitly drawn to the fact that, if he enters a guilty , plea, he will not enjoy the assistance of appointed appellate counsel.
In Ross, supra, the Supreme Court was asked to extend the right to appointment of counsel for an appeal as of right, which was articulated in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), to the preparation of petitions for leave to appeal to either the United States Supreme Court or to North Carolina’s highest court. The Court declined to extend the right that far and, in so ruling, explained the constitutional underpinnings that guided its decision. After first recounting how both the Due Process and Equal Protection Clauses have been invoked in this context, the Court explained that, in its view, the Equal Protection *714Clause provided the more compelling rationale:
[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a judge or a jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt. This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant’s consent, it is clear that the State need not provide any appeal at all. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). The fact that an appeal has been provided does not automatically mean that a State then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. Douglas v. California, supra. Unfairness results only if indigents are singled out by the State and denied meaningful access to the appellate system because of their poverty. That question is more profitably considered under an equal protection analysis.
[T]here are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment “does not require absolute equality or precisely equal advantages,” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 24, 93 S.Ct. 1278, 1291, 36 L.Ed.2d 16 (1973), nor does it require the State to “equalize economic conditions.” Griffin v. Illinois, 351 U.S., at 23, 76 S.Ct., at 592 (Frankfurter, J., concurring). It does require that the state appellate system be “free of unreasoned distinctions,” Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966), and that indigents have an adequate opportunity to present their claims fairly within the adversary system. Griffin v. Illinois, supra; Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963). The State cannot adopt procedures which leave an indigent defendant “entirely cut off from any appeal at all,” by virtue of his indigency, Lane v. Brown, 372 U.S., at 481, 83 S.Ct., at 771, or extend to such indigent defendants merely a “meaningless ritual” while others in better economic circumstances have a “meaningful appeal.” Douglas v. California, supra, 372 U.S. at 358, 83 S.Ct. at 817. The question is not one of absolutes, but one of degrees. In this case we do not believe that the Equal Protection Clause, when interpreted in the context of these cases, requires North Carolina to provide free counsel for indigent defendants seeking to take discretionary appeals to the North Carolina Supreme Court, or to file petitions for certiorari in this Court.
Ross, 417 U.S. at 610-12, 94 S.Ct. 2437 (footnote omitted).
A month after the district court issued its injunctive order in the case before us, the Michigan Supreme Court released an opinion holding that the indigent defendants are not “entitled to the appointment of counsel at public expense when applying for leave to appeal a plea-based conviction.” Michigan v. Bulger, 462 Mich. 495, 499, 614 N.W.2d 103, 104, cert. denied, 531 U.S. 994, 121 S.Ct. 486, 148 L.Ed.2d 459 (2000). It offered the following rationale:
Appeals from plea-based convictions and appeals from convictions obtained *715following trials, like those appeals at issue in Douglas and Ross, are fundamentally different. Foremost, a defendant who tenders a plea has admitted guilt of the offense in open court. “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
... 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. Also, a concession of guilt limits considerably the potential issues that can be raised on appeal. These are all reasoned distinctions that are relevant to determining whether Michigan provides “meaningful access” to the appellate courts.
Bulger, 462 Mich. at 515-517, 614 N.W.2d at 112-13 (citations and footnote omitted).
Plaintiffs take issue with the distinction drawn by the Michigan Supreme Court between appeals of right and discretionary appeals. In their view, this emphasis is misplaced. Instead, the key is whether the appeal is a defendant’s first appeal. Hence, this case is closer to Douglas than to Ross because the latter involved a discretionary appeal after the first appeal of right had been adjudicated. They point to the following language in Douglas: “[W]here the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel,, we think an 'unconstitutional line has been drawn between rich and poor.” Douglas, 372 U.S. at 357, 83 S.Ct. 814. They buttress the force of this observation by pointing out that, as of 1987, 47 states permitted first appeals as of right and that cases like Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), referred to the right to have counsel advocate on one’s behalf in the “first appeal.”
As already mentioned, however, “[t]he question is not one of absolutes, but one of degrees.” Ross, 417 U.S. at 612, 94 S.Ct. 2437. While the appeal at issue in this case is undoubtedly a defendant’s first appeal, it has also been rendered discretionary by his decision to- plead guilty. The state has a fundamental interest" in the finality of guilty pleas, Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and by entering a plea a defendant has voluntarily acknowledged that he does not dispute the factual basis of the state’s case against him. Given that there has not been an underlying trial, the number of issues for appeal has been greatly reduced.1 Furthermore, the statute provides that a defendant can guarantee himself appointed appellate counsel by entering a conditional plea that preserves those issues that trial counsel has identified as viable on appeal. Mich. Comp. Laws § 770.3a(2)(d). In short, the protections built into the statute convince me that in *716this “matter of degrees” the balance tips in favor of constitutionality.
In addition to the protections built into the statute itself, Michigan’s Supreme Court has interpreted its own court rules to “require trial counsel to assist the defendant in organizing and presenting to the trial court any potential appellate issues that warrant preservation.” Bulger, 462 Mich. at 518, 614 N.W.2d at 113 (interpreting Mich. Ct. R. 6.005(H)(4), which provides that “[t]he responsibilities of the trial lawyer appointed to represent the defendant include ... unless an appellate lawyer has been appointed, filing of post-conviction motions the lawyer deems appropriate, including motions for new trial, for a directed verdict of acquittal, to withdraw plea, or for resentencing.”). As a federal court, we are bound by Michigan’s highest court’s interpretation of the Michigan’s court rules. See Moore v. Sims, 442 U.S. 415, 427, 99 S.Ct. 2871, 60 L.Ed.2d 994 (1979) (noting “the primacy of the State in the interpretation of its own laws and the cost to our federal system of government inherent in federal-court interpretation and subsequent invalidation of parts of an integrated statutory framework”).
In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court found unconstitutional California’s practice of allowing a defendant’s appointed counsel to review the defendant’s trial record, and then withdraw from representation by submitting a letter to the reviewing court stating that, in his opinion, there existed no meritorious grounds for appeal. 386 U.S. at 743, 87 S.Ct. 1396. The Court held, nonetheless, that the appointed counselor could ask to withdraw and opine on the merits of the case before the reviewing court if he attached to his request to withdraw “a brief referring to anything in the record that might arguably support the appeal;” the reviewing court would then have the ability to review the case and ask the counselor to remain as a representative of the defendant if the court found any meritorious grounds for appeal. Id. at 744, 87 S.Ct. 1396. Though not obligatory on the States, such a process would pass constitutional muster. Smith v. Robbins, 528 U.S. 259, 272-73, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).
The Court in Smith, after reviewing Evitts, Ross, Douglas, and other cases dealing with an indigent defendant’s right to counsel on appeal, stated that, in sum, the Constitution requires that “a State’s procedure afford adequate and effective appellate review to indigent defendants, ... [which it does] so long as it reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal.” Smith, 528 U.S. at 276-77, 120 S.Ct. 746 (internal quotations and citations omitted). In the case before us, even though the defendant’s trial lawyer is only required to present “potential issues that warrant preservation” to the trial court, the defendant is nonetheless left with the benefits of a lawyer’s review of the record and is not placed in the situation, condemned by the Supreme Court, “where the rich man ... enjoys the benefit of counsel’s examination into the record, research of the law, and marshall-ing of arguments on his behalf, while the indigent ... is forced to shift for himself.” Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Given that Michigan law requires a defendant’s appointed trial lawyer to “assist the defendant in organizing and presenting to the trial court any potential appellate issues that warrant preservation,” Bulger, 462 Mich. at 518, 614 N.W.2d at 113, and that the trial court is required to appoint appellate counsel if the appellate court grants leave to appeal, Mich. Comp. Laws § 770.3a(2)(c), I fail to see how Michigan’s *717statutory scheme unconstitutionally bars an indigent defendant’s meaningful access to the court system.
Finally, the Majority Opinion acknowledges that we are obliged to fill in the gaps left by the Supreme Court on this issue. To that end, I note that the Court denied certiorari in Bulger, supra, an opinion that came to a contrary conclusion on the practice, if not the actual statute, at issue in this case despite an entreaty from the dissent that the Court take the case to “correct the constitutional miscarriage committed by the majority.” 462 Mich. at 522, 614 N.W.2d at 115 (Cavanagh, J., dissenting). While not dispositive of the matter before us, the Court’s denial of certiorari strikes me as entitled to some weight in our effort to determine where, in this “matter of degrees,” the Court might draw the line.
I respectfully dissent.
. It is worth noting that this coúrt has upheld plea agreements in which defendants unconditionally waive the right to appeal. See, e.g., United States v. Fleming, 239 F.3d 761, 763-64 (6th Cir.2001) (defendant in criminal case may waive the right to appeal); United States v. Allison, 59 F.3d 43, 46-47 (6th Cir.1995) (same); United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir.1995) (same). While not completely analogous, it nonetheless strikes me as inconsistent that we would approve a practice that potentially cuts off all appellate avenues while striking down the Michigan scheme, which leaves limited, statutorily defined appellate remedies available to defendants.