People v. Houlihan

Michigan Supreme C0urt
Lansing, Michigan

De°emb@r 16= 2005 clifford W. rayi@r

Chief Justice
l 2 8340
Michael F. Cavanagh
Elizabeth A. Weaver

PEoPLE oi= THE STATE oF MICHIGAN, marilyn Kaiy

. » M o.c '
Plaintiff-Appellee, R:€;; P_ Y§;l:§j‘§r_

Stephen J. Marlunan
V SCZ 128340 Justices

COA: 256534
Kent CC: 0l-002731-FC
KENNETH JAY HOULIHAN,
Defendant-Appellant.

/

On November 8, 2005, the Court heard oral argument on the application for leave
to appeal the February 10, 2005 order of the Court of Appeals. On order of the Court, the
application for leave to appeal is again considered. lt appears to this Court that the case
of Simmons v Metrz`sh, No. 03-2609, is pending in the United States Court of Appeals for
the Sixth Circuit, on remand from the U.S. Supreme Court for reconsideration in light of
Halbert v Mz`chz`gan, 545 US _____; 125 S Ct 2582; 162 L Ed 2d 552 (2005). This Court
recognizes that the SiXth Circuit decision in Simmons will not be binding on this Court,
see Abela v General Motors Corp, 469 Mich 603, 607 (2004). But if this Court were to
rule that Halbert does not apply to motions brought under l\/ICR 6.502, and the Sixth
Circuit were to grant relief to the defendant in Sz`mmons, Michigan defendants might then
commonly receive relief in federal habeas proceedings inconsistent with the results they
might receive from Michigan courts. Given these circumstances, we ORDER that the
application be held in ABEYANCE pending the decision in that case.

KELLY, J., concurs and states as follows:

l concur in abeying this matter for the decision of the United States Court of
Appeals for the Sixth Circuit in Sz`mmons v Metrish, (Docket No. 03~2609). l cast this
vote notwithstanding my strong preference to remand this and all similar cases for the
appointment of counsel. Unfortunately, insufficient votes exist on the Court to support a
remand order, and without my vote to hold the case in abeyance, the decision below
would stand, denying counsel to defendant.

'l`he issue presented both in Simmons and in this case is whether the United States
Supreme Court’s decision in Halbert v Mz`chz'ganl, applies retroactively to l\/lichigan cases

1____ Us _____; 125 s cr 2582; 162 L Ea 2d 552 (2005).

2

on collateral review. Halbert held that Michigan must appoint legal counsel for indigent
defendants who seek in the Court of Appeals discretionary review of their plea-based
convictions. l believe that we should apply Halbert retroactively to other cases that are
on collateral review.

'l`he general rule in Michigan is that judicial decisions are given complete
retroactive effect. Prospective application is given only to decisions that overrule clear
and uncontradicted case law. Hyde v Unz`v ofMz`chz'gan Ba’ of Regents, 426 l\/lich 223,
240 (1986). This is because the latter cases are found to be "unexpected" and
"indefensible" in light of the law existing at the time of the conduct in question. People v
Doyle, 451 Mich 93, 104 (1996).

To determine whether a decision establishes a new rule of criminal procedure,
federal courts apply the analysis of Teague v Lane, 489 US 288 (1989). Retroactivity is
required unless the rule is new. Id. at 301. A rule is not considered new unless it
"‘breaks new ground,’ ‘imposes a new obligation on the States or the Federal
Government,’ or was not ‘dictated by precedent existing at the time the defendant’s
conviction became final."’ Graham v Collz`ns, 506 US 461, 467 (1993), quoting Teague,
supra at 301 (emphasis omitted).

The Halbert decision relied on the Due Process Clause and the Equal Protection
Clause of the Fourteenth Amendment to the federal constitutionz and on the Court’s
earlier decision in Douglas v Calzfornz'a, 372 US 353 (1963). Douglas held that the
federal Due Process Clause and Equal Protection Clause require a state to provide
counsel for indigent defendants seeking first-tier review as of right in state appellate
courts. Id. at 356. lt was decided in l963. The United States Supreme Court made it
clear at that time that "there can be no equal justice where the kind of an appeal a man
enjoys ‘depends on the amount of money he has."’ Id. at 355, quoting Grifjin v Illz'noz's,
351 US 12, 19 (1956).

Accordingly, it would be inaccurate to say that the Supreme Court’s decision in
Halbert was "unexpected" and "indefensible" when made in 2005. Nor would it be
accurate to assert that Halbert announced a new federal rule. Admittedly, l\/lichigan law
did not allow for the appointment of appellate counsel to indigent defendants seeking
first-tier review of a plea of guilty or nolo contendere. However, l\/lichigan law did not
then and does not now exist in a vacuum. The unequivocal language of Douglas left no
doubt that principles of equal protection are violated when indigent defendants are treated

2 Us c@nsr, Am xiv, § i.

3

differently than rich defendants. For over forty years, indigent defendants have been
entitled to the appointment of counsel at least in first-tier appeals as of right.

Hence, it seems likely that the federal courts in Simmons will rule that Hczlberz‘
should be applied retroactively. l\/leanwhile, if this Court persists in failing to require
appointed appellate counsel in this and all similar cases, hundreds of these cases likely
will have to be reviewed again. This will enormously burden the appellate judicial
system and work an untold hardship on many individuals caught up in it.

CAVANAGH, J., dissents and states as follows:

l disagree with the majority’s decision to hold this case in abeyance pending the
decision of the United States Court of Appeals for the Sixth Circuit in Simmons v Metrz`sh
(Docket No. 03-2609). lt has been over five years since a majority of this Court
determined that it was constitutionally permissible to deny counsel to indigent defendants
who are appealing from a guilty or nolo contendere plea. See People v Bulger, 462 l\/lich
495 (2000). ln Bulger, l vehemently disagreed with the position taken by the majority.
Now, the United States Supreme Court has spoken, and it has held that a majority of this
Court improperly and unconstitutionally denied counsel to l\/lichigan’s indigent
defendants. See Halbert v Mz`chigan, __ US ___; 125 S Ct 2582; 162 L Ed 2d 552
(2005).

Since the majority’s decision in Bulger, numerous indigent defendants who were
constitutionally entitled to counsel have been improperly denied their rights. lt is
untenable to me that these indigent defendants must now continue to wait for their
government to follow the United States Constitution. lndigent defendants were denied
that which the Constitution requires, and l fail to see why the majority continues to
prolong the deprivation of an indigent defendant’s right to counsel. Accordingly, l
believe counsel should be appointed without delay for those indigent defendants
improperly denied their constitutional rights. In this case, as in the many other cases
involving the deprivation of counsel to indigent defendants, justice delayed is truly
justice denied.

MARKMAN, J., dissents and states as follows:

l respectfully dissent. Because 1 do not believe that the decision in Halberl v
Michigan, 545 US ___; 125 S Ct 2582; 162 L Ed 2d 552 (2005), applies retroactively to
permit a collateral attack upon a conviction that was already final at the time Hczlbert was
released, l do not believe defendant is entitled to relief. Accordingly, l would simply
deny leave to appeal,

l. FACTS AND PROCEDURAL HISTORY

ln 2001, defendant pleaded guilty to charges of first-degree criminal sexual
conduct and child sexually abusive activity. He was sentenced to prison terms of 20 to
40 years for the CSC l conviction and 13 years, 4 months to 20 years for the child
sexually abusive activity conviction. Defendant requested the appointment of appellate
counsel, but the trial court denied the request pursuant to MCL 770.3a. Defendant filed a
pro se application for leave to appeal, arguing that he was entitled to the appointment of
appellate counsel, but the Court of Appeals denied leave on January 2, 2003. Defendant
then sought leave to appeal in this Court, which denied leave to appeal on September 19,
2003. Defendant did not file a petition for certiorari in the United States Supreme Court.

ln December 2003, defendant filed a motion for relief from judgment. The trial
court denied the motion on l\/lay 27, 2004. The Court of Appeals denied defendant’s
delayed application for leave to appeal from the denial of that motion on February 10,
2005. Defendant then filed an application for leave to appeal in this Court. We
scheduled oral argument on the application and directed the parties to file supplemental
briefs "addressing whether the holding in [Halbert] retroactively applies to defendant’s
motion for relief from judgment from his plea-based conviction where the trial court
denied his request for the appointment of appellate counsel to assist him in pursuing a
direct appeal." People v Houlz`han, 474 Mich 866 (2005).

ll. STANDARD OF REVIEW

This case requires us to determine whether the United States Supreme Court’s
decision in Halbert applies retroactively. Whether a decision applies retroactively is an
issue of law, which this Court reviews de novo. People v Sexton, 458 l\/lich 43, 52
(1998).

lll. ANALYSIS
A. HALBERT

ln 1994, the voters of this state amended our Constitution to provide that "an
appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court"
and not as of right. Const 1963, art 1, § 20. Thereafter, many trial court judges began to
deny appointed appellate counsel to indigent defendants who had pleaded guilty. See
Kowalskz` v Tesmer, 543 US 125 (2004). 'l`his Court upheld the constitutionality of this
practice against challenges based on the "equal protection" and "due process" clauses of
the Fourteenth Amendment to the United States Constitution. People v Harrz`s, 470 l\/Iich
882 (2004); People v Bulger, 462 l\/lich 495 (2000). 'l`he Legislature also codified this
practice of limiting the appointment of appellate counsel in guilty plea cases. MCL.

770.3@.3

l-lowever, in Hczlbert, the United States Supreme Court held, in a six to three
decision, that the "due process" and "equal protection" clauses of the Fourteenth
Amendment to the United States Constitution require that counsel be appointed for
defendants who have pleaded guilty and who seek to appeal their convictions to the
Michigan Court of Appeals.

B. RETROACTIVITY

While the Supreme Court in Halbert answered in the affirmative the question
whether this state is obligated to provide appellate counsel for first-tier appeals from
plea-based convictions, it did not specifically address the question whether such decision
applies retroactively.

While this Court has had occasion to address the retroactivity issue a number of
times in recent years, the wide variety of factual and jurisprudential considerations that
have entered into our analyses in those cases suggest that it is difficult to articulate a
bright-line rule. However, this case involves a retroactivity question regarding a decision
of the United States Supreme Court concerning the meaning of the United States
Constitution. For that reason, principles of retroactivity established by that Court govern
the instant inquiry.`l

3 Specifically, MCL 770.3a(1) provided that, except for certain situations not here
relevant, "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.” The analysis contained herein with respect to defendant’s "guilty plea" is
equally applicable to the other types of pleas referenced in this statute.

4 Even if this case were not controlled by federal retroactivity jurisprudence, the reasons
underlying the federal standard in this area counsel in favor of its use here. An important
justification for the retroactivity doctrine of Teague v Lune, 489 US 288 (1989), concerns
the state’s interest in the finality of convictions. "[T]he Teague principle protects not
only the reasonable judgments of state courts but also the States’ interest in finality quite
apart from their courts." Beard v Bunks, 542 US 406, 413 (2004). Teague explained that
the retroactive application of new rules on collateral review is potentially intrusive
because "it continually forces the States to marshal resources in order to keep in prison
defendants whose trials and appeals conformed to then-existing constitutional standarcls."
Teague, supra at 310 (emphasis omitted). Plainly, this interest in the finality of

(continued. . .)

6

The "general rule," Teague v Lane, 489 US 288, 310 (1989), is 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. That is, new rules are
usually not applied retroactively. However, Teague adopted two exceptions to this
general rule of nonretroactivity. 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."’ Ia’. at 307 (citation omitted). 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. (citation and internal quotation
marks omitted).

Under Teague, the determination whether a constitutional rule of criminal
procedure applies to a case on collateral review involves a three-step inquiry: (l) the
court must determine when the defendant’s conviction became final; (2) the court must
ascertain the "‘legal landscape as it then existed,"’ i.e., whether the rule is "‘new"’ or,
rather, was compelled by existing precedent; and (3) if the rule is new, the court must
decide whether it falls within either of the two exceptions to nonretroactivity noted
above. See, e.g., Beard v Banks, 542 US 406, 411 (2004) (citations omitted). l turn now

to that inquiry.
1. Di-:FENDANr’s CoNvicrloN rs FiNAL

A state court conviction is final "‘for purposes of retroactivity analysis when the
availability of direct appeal to the state courts has been exhausted and the time for filing a
petition for a writ of certiorari has elapsed or a timely filed petition has been finally
denied."’ Beara', supra at 411 (citation omitted). Here, defendant’s direct appeal ended
when this Court denied leave to appeal in 2003, and the time for filing a petition for
certiorari elapsed without defendant’s having filed such a petition. The decision in
Halbert, meanwhile, was not released until June 23, 2005. Thus, defendant’s conviction
was clearly final for purposes of the Teague analysis.

Defendant and amicus Criminal Defense Attorneys of l\/lichigan (CDAM) argue,
however, that defendant’s motion for relief from judgment should be viewed as
essentially a continuation of his direct appeal. Defendant contends that some sort of
tolling is required because he was denied the opportunity to have counsel assist him in

(. . .continued)
convictions is vindicated by the application of the Teague standard in state collateral
proceedings as well as federal collateral proceedings.

7

the direct appeal. Likewise, CDAl\/l argues that because defendant never had an appeal
with the assistance of counsel, "he is in the position of someone whose case is still
pending on direct review." CDAl\/l brief at 8. CDA1\/l suggests that defendant’s direct
appeal was "invalid” because defendant did not have the assistance of counsel in his
direct appeal.

These arguments amount to classic bootstrapping. ln asserting that this collateral
proceeding should be viewed as a continuation of defendant’s direct appeal because he
was denied counsel, CDAl\/l and defendant put the cart before the horse. They are
essentially applying Halbert retroactively to conclude that the absence of counsel renders
void the prior proceedings on direct review. But defendant cannot simply assume in this
manner that Halbert applies retroactively, for that is the very issue that we must here
decide. The Supreme Court has made clear that a court "‘must apply Teague before
considering the merits of [a] claim,"’ Beard, supra at 412 (emphasis in oiiginal; citation
omitted). Here, defendant and CDAl\/l erroneously reach the merits of the claim first by
assuming that defendant was entitled to counsel under Halbert, and then using that
assumption to argue that defendant’s conviction is not final. This circular logic is
unavailing. Defendant’s conviction was clearly final at the time Halbert was issued.

Z. HALBERT IS A NEW RULE

The second step of the Teague inquiry requires us to ascertain whether the holding
in Halbert constitutes a "new rule." ln general, "‘a case announces a new rule when it
breaks new ground or imposes a new obligation on the States or the Federal
Government."’ Penrj/ v Lynaugh, 492 US 302, 314 (1989) (citation omitted). ln
determining whether the rule is "new," the Court must 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 conclude that the rule [he] seeks was required by
the Constitution."’ O’Dell v Netherland, 521 US 151, 156 (1997) (internal citations
omitted). lf not, then the rule is new.

ln Beard, supra at 413, the Supreme Court made clear that the question is not
merely whether the existing precedent might have supported the rule, but whether it
dictated the rule. The rule must have been "‘apparent to all reasonable jurists."’ ld.
(Citation omitted.) Beard also noted that the existence of dissenting opinions in the case
adopting the rule may be relevant (although not dispositive) in considering whether the
existing precedent compelled the rule. Id. at 415-416.

Here, it is clear that existing precedent did not dictate the holding in Halbert. As
both the majority and dissenting opinions in Halbert recognized, the issue in Halbert and
Bulger essentially fell into a gap between two existing precedents: Douglas v Calzfornz`a,

8

372 US 353 (1963), and Ross v Mojj‘itt, 417 US 600 (1974) (see Halbert, supra, 545 US
__ n 2; 125 S Ct 2590 n 2; 162 L Ed 2d 564 n 2). The Supreme Court recognized that
the defendant’s case was "framed by" the two decisions concerning state-funded
appellate counsel: Douglas, which held that the Fouiteenth Amendment guarantees a
criminal appellant the right to counsel on a first appeal as of right, and Ross, which held
that the Fourteenth Amendment does not require a state to provide free counsel for
indigent defendants seeking to take discretionary appeals to the highest state court.
Halbert described the question before it as "essentially one of classification: With which
of those decisions should [petitioner Halbert’s] case be aligned?" Id., 545 US ______; 125 S
Ct 2590; 162 L Ed 2d 564.

Two aspects of the appellate process following plea-based convictions in
l\/lichigan eventually persuaded a majority of the Supreme Court that Douglas, not Ross,
was contro11ing. First, in ruling on an application for leave to appeal, the Court of
Appeals examines the merits of an appellant’s claims. Id. "Of critical importance" to the
Court’s decision was that the Court of Appeals, unlike this Court, sits as an error-
correction court. Id. Second, the Supreme Court concluded that indigent defendants
pursuing first-tier review in the Court of Appeals are "generally ill equipped to represent
themselves." Id. The Court reasoned that a defendant who pleads guilty in a l\/lichigan
court, although he relinquishes access to an appeal as of right, is entitled to apply for
leave to appeal, and that entitlement is formally communicated to him. Id.

ln both Bulger and Halbert, reasonable jurists could, and did, disagree regarding
whether Douglas or Ross was the more relevant precedent. The six-justice Supreme
Court majority in Halbert, and two justices dissenting from this Court’s opinion in
Bulger, concluded that Douglas was the more relevant precedent, because it established a
right to counsel in a first-tier review of a criminal conviction. But the four-justice
majority in Bulger (a case in which 1 was recused) also articulated a reasonable argument
that Ross was more applicable, because it involved an application for discretionary
review. l\/loreover, the three dissenting justices in Halbert adopted a considerable part of
the rationale of our majority opinion in Bulger.

ln short, while Douglas may well have supported the holding in Halbert, it did not
compel that holding. lt simply was not apparent to four members of this Court or to three
members of the United States Supreme Court that Douglas required the appointment of
counsel to file an application for discretionary review of a guilty-plea conviction. Thus,
reasonable jurists could, and did, disagree on this issue.

Further, it is apparent that the decision in Halbert "‘imposes a new obligation"’ on
this State. Penry, supra at 314 (citation omitted). Specifically, Michigan courts are now
required to appoint counsel for defendants convicted on their pleas who seek access to

9

first-tier appellate review in the Court of Appeals. This obligation did not exist before
the decision in Halbert, and is therefore indisputably "new."

Accordingly, l have no difficulty concluding that the rule adopted in Halbert is a
"new" rule for purposes of the Teague retroactivity analysis.

3. TEAGUE EXCEPTIONS ARE INAPPLICABLE

Having concluded that defendant’s conviction was final by the time of Halbert,
and that the Halbert rule is new, the final step in the Teague analysis requires a
determination whether the rule nonetheless falls within one of the two exceptions
outlined in Teague. O ’Dell, supra at 156-157. The first exception pertains to new rules
"‘forbidding criminal punishment of certain primary conduct [and] rules prohibiting a
certain category of punishment for a class of defendants because of their status or
offense."’ Id. at 158 (citation omitted). 'l`here has been no suggestion that this exception
applies in the instant case. The second, "even more circumscribed," exception, id.,
permits retroactive application of ""‘watershed rules of criminal procedure" implicating
the fundamental fairness and accuracy of the criminal proceeding."’ Graham v Collins,
506 US 461, 478 (1993) (citations omitted).

The Supreme Court has repeatedly emphasized the limited scope of the second
Teague exception, explaining that ""‘it is clearly meant to apply only to a small core of
rules requiring observance of those procedures that . . . are implicit in the concept of
ordered liberty.""’ Beard, supra at 417, quoting O’Dell, supra at 157, quoting Graham,
supra at 478. 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 omitted). ln other words, the requirements of this
exception present an extremely high barrier-a barrier so high, in fact, that it has never
yet been surmounted

With this in mind, we must determine whether the right to appointed counsel to
assist in an appeal from a plea-based conviction is a ""‘watershed rule[] of criminal
procedure" implicating the fundamental fairness and accuracy of the criminal

proceeding"’ or implicit in the concept of ordered liberty.""" Graham, supra at 478
(citations omitted). 1 believe that it is not.

10

Defendant correctly observes that the Supreme Court has referred to the Gideon§
right to counsel as an example of a rule that would fall into the second Teague exception.
However, it is significant that in referring to this example, the Supreme Court observed,
"ln 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). Yet, 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, which are rooted in the "equal
protection" and "due process" clauses of the Fourteenth Amendment.

The Sixth Amendment right to counsel at trial is fundamental to the fair and
accurate determination of guilt because the trial is the focus of the entire criminal
proceeding-the "main event," so to speak.6 Halbert, however, does not speak to the
procedure by which guilt is fairly and accurately determined. lt does not address itself to
the plea proceeding that, like its counterpart, the trial, is the "main event" of the criminal
process. Defendant enjoyed his Sixth Amendment right to counsel at such plea
proceeding, including the benefit of elaborate procedures designed to secure his knowing
and intelligent waiver of rights incidental to the trial process. See, e.g., l\/lCR 6.302.
Rather, Halbert was concerned with a distinct procedure, the criminal appeal, which the
state has no obligation to provide at all. See Halbert, supra, 545 US ___; 125 S Ct 2586;
162 L Ed 2d 559~560, citing McKane v Durston, 153 US 684, 687 (1894). lt cannot be
said that Halbert announced a rule either "‘central to an accurate determination of
innocence or guilt"’ or ""‘implicit in the concept of ordered liberty.""" Beard, supra at
417 (citations omitted).

lndeed, the Supreme Court itself has recognized that appeals are not central to the
accurate determination of guilt. ln Goeke v Branch, 514 US 115 (1995), the Supreme
Court held that the second exception for nonretroactivity did not apply to a new rule
barring the dismissal of an appeal of a recaptured fugitive. The Court held that the new
rule was not among the "small core of rules requiring observance of those procedures that
. . . are implicit in the concept of ordered liberty. Because due process does not require a
State to provide appellate process at all, a former fugitive’s right to appeal cannot be said

5 Gzae@n v wainwright 372 Us 335 (1963).

6 The Supreme Court has noted that "the Sixth Amendment inquiry trains on the stage of
the proceedings corresponding to [a defendant’s] . . . trial, where his guilt was
adjudicated, eligibility for imprisonment established, and prison sentence determined."
Alabama v Shelton, 535 US 654, 665 (2002).

11

to be so central to an accurate determination of innocence or guilt, as to fall within this
exception . . . ." [d. at 120 (citations and internal quotations omitted).

Here, defendant’s guilt was established by his own plea, and the plea hearing, at
which defendant was represented by counsel and accorded a broad array of procedural
protections, was the "main event." lndeed, 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 mouth of the defendant himself and in
an environment in which the defendant has been accorded every protection against a
coerced or mistaken confession.

Halbert does not call into question the validity of the procedures employed during
the plea and sentencing aspects of defendant’s experience with the criminal justice
system; rather, Halbert dealt only with the right to appeal. The federal constitution
imposes on the states no obligation to provide appellate review of criminal convictions.
Because due process does not require a state to provide appellate process at all, the
Halbert rule cannot be said to be among the ""‘small core of rules requiring observance
of those procedures that . . . are implicit in the concept of ordered liberty.""’ Beard,
supra at 417 (citations omitted).

The Supreme Court has noted that it has "yet to find a new rule that falls under the
second Teague exception." Id. For the reasons noted, l do not believe that the rule in
Halbert is so exceptional as to constitute the first of such rules.

IV. CoNcLUsioN

The rule of Halbert~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 Court of Appeals-applies retroactively to all cases pending on
direct review as of Hall)ert's issuance. l~lowever, it does not apply retroactively to
collateral proceedings in cases already final as of that date. Because defendant’s direct
appeal ended in 2003, before the .lune 23, 2005, issuance of Halbert, the Halbert rule, in
my judgment, is inapplicable to defendant.

Such a result comports not only with the analytical framework established by
Teague, but also with the important considerations of judicial economy and finality that
underlie that test. Here, defendant has received the full protection of the legal process
when, through his own admission, his guilt was established. The state has a strong
interest in the finality of that process and in not being required to constantly redefine that
process, and in not being forced "to marshal resources in order to keep in prison

12

defendants whose trials and appeals conformed to then-existing constitutional standards."
Teague, supra at 310. This is particularly so where the conviction is based on a guilty
plea, entered after a defendant has received the full panoply of procedural protections
accorded by the relevant provisions of the federal and state constitutions, statutes, and
court rules. Because such a defendant has received all the protections that due process
requires, we can take comfort in the finality of that conviction, in terms of compliance
with Teague and compliance with the requirements of fundamental fairness and justice.

Accordingly, at least for the instant class of cases, the will of the people of
Michigan, who initiated and approved the amendment to Const 1963, art 1, § 20, and
whose elected representatives enacted MCL 770.3a, should be honored, and defendant’s
application for leave to appeal should be denied.

CORRIGAN, .l., joins the dissenting statement of l\/lARKl\/IAN, J.

YOUNG, J., joins in the abeyance order but agrees with the analysis of the
dissenting statement of MARKMAN, J.

I, CORBIN R. DAVIS, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.

<>OA<:Q¢»&\ /5 .2005`

Clerk