dissenting:
I must respectfully dissent. The majority in addressing the issue of whether Blankenship has a right to • counsel in the Texas Court of Criminal Appeals when the State has successfully sought discretionary review concludes that he does not.' The majority *1207opinion is contrary to clearly established, long-standing federal law.
The procedural history of this case is straightforward. Blankenship, with appointed counsel, was successfully prosecuted in the district court of Camp County, Texas where he was convicted of the offense of aggravated robbery. The Texas Court of Appeals reversed the conviction. See Blankenship v. Texas, 764 S.W.2d 22 (Tex.App.—Texarkana 1989). The State then sought discretionary review in the Court of Criminal Appeals and after review was granted, the State successfully prosecuted its appeal, and Blankenship’s conviction was reinstated. See Blankenship v. Texas, 785 S.W.2d 158 (Tex.Crim.App.1990). Blankenship was without appointed counsel before the Court of Criminal Appeals.
The majority’s analysis is equally straightforward. The majority reasons that since the Supreme Court has never specifically addressed whether there is a constitutional right to counsel for a discretionary review on the merits by a state court that was petitioned for by the State,1 then there is no clearly established federal law establishing such a right as determined by the Supreme Court. And therefore, amended 28 U.S.C. § 2254(d)(1) controls and we shall not grant relief to Blankenship on his habeas petition.
The issues raised by the majority opinion will be addressed in turn. However, central to any analysis is one matter of fact and one issue of law, i.e., the fact that it was the State and not Blankenship that sought discretionary review in the Court of Criminal Appeals; and then after review was granted, the legal issue becomes whether Blankenship had a constitutional right to counsel.
I. Sources of Blankenship’s Constitutional Right to Counsel
A. “Critical Stage”
It has long been clearly established federal Supreme Court law that indigent defendants are entitled to appointed counsel at critical stages of a criminal case. The Sixth Amendment guarantees that in “all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence.” See U.S. Const, amend. VI. “[T]he core purpose of the [sixth amendment] counsel guarantee was to assure ‘Assistance’ at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosector. Later developments have led [the courts] to recognize that ‘Assistance’ would be less than meaningful if it were limited to the formal trial itself.” United States v. Ash, 413 U.S. 300, 309-10, 93 S.Ct. 2568, 2573-74, 37 L.Ed.2d 619 (1973). Accordingly, a defendant has a right to counsel at “critical stages” of prosecution. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The Sixth Amendment right to counsel is determined by “whether potential substantial prejudice inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.” Smith v. Puckett, 907 F.2d 581, 583 (5th Cir.1990) (quoting United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967)), cert. denied, 498 U.S. 1033, 111 S.Ct. 694, 112 L.Ed.2d 685 (1991).
A variety of proceedings have been established as “critical stages” triggering the right to counsel. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) (preliminary hearing); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (sentencing phase); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (post-indictment line-up); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (preliminary hearing); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (trial); Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment). It is not a timeline that determines if a proceeding implicates the Sixth Amendment right to counsel, but the interests at stake in such proceedings. Compare Chewning v. Rogerson, 29 F.3d 418, 421 (8th Cir.1994) (citing cases) (extradition not a “critical stage”) with *1208Mempa, 389 U.S. 128, 88 S.Ct. 254 (sentencing phase a “critical stage” triggering right to counsel). In Mempa, the Court explained that Gideon’s progeny “stand for the proposition that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” 389 U.S. at 134, 88 S.Ct. at 257. Non-critical stages not affecting substantive rights include the taking of fingerprints, blood, hair, and post-arrest photographs, see United States v. Buttock, 71 F.3d 171,177 (5th Cir.1995), cert. denied, — U.S. —, 116 S:Ct. 1365, 134 L.Ed.2d 531 (1996); United States v. Dougall, 919 F.2d 932, 935 (5th Cir.1990), cert. denied, 501 U.S. 1234, 111 S.Ct. 2860, 115 L.Ed.2d 1027 (1991), and routine pre-sen-tence interviews in non-capital cases, United States v. Woods, 907 F.2d 1540, 1542 (5th Cir.1990), cert. denied, 498 U.S. 1070, 111 S.Ct. 792, 112 L.Ed.2d 854 (1991).
The appeal by the State here amounted to an attack on the reinstatement of Blankenship’s innocence, the same interest at stake at trial. Blankenship stood in the same position as Gideon, defending his innocence against the resources of the State, see Gideon, 372 U.S. at 335, 83 S.Ct. at 792, a position in which he is clearly entitled to counsel. Blankenship had the same liberty interest at stake before the Texas Court of Criminal Appeals as in any preliminary hearings he. may have had and at the trial itself. Clearly when the Texas Court of Criminal Appeals considered the merits of Blankenship’s case on the State’s petition, it was in a critical stage of the State’s prosecution of this criminal case.
B. The Right to Appellate Counsel under the Equal Protection and Due Process Clauses
In addition to having a Sixth Amendment right to counsel at the “critical stage” of the Texas Court of Criminal Appeals’ decision to reinstate his vacated conviction, Blankenship also had a long-established right to counsel before that state court under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. “[I]f a state has created appellate courts as an integral part of the system for finally adjudicating the guilt or innocence of a defendant, the procedures used in deciding appeals must comport with the demands of the Due Process and the Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985) (citation and internal quotation omitted).
1. Blankenship’s Equal Protection Right to Counsel
It is well established that an indigent criminal appellant has a right to an attorney for a first appeal as of right. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539 (1987); United States v. Guerra, 94 F.3d 989, 994 (5th Cir.1996) (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)). The right to appellate counsel as derived from the Equal Protection Clause is based on an equality of “meaningful access” to courts irrespective of financial resources. See Ross v. Moffitt, 417 U.S. 600, 611, 615, 94 S.Ct. 2437, 2444, 2447, 41 L.Ed.2d 341 (1974). “The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.” Id. at 616, 94 S.Ct. at 2447 (emphasis added). The Douglas Court reasoned that an indigent convict is denied equal protection where a person able to afford counsel “enjoys the benefit of counsel’s examination into the record, research of the law, and marshaling of arguments on his behalf ...” 372 U.S. at 358, 83 S.Ct. at 817, while “only the barren record speaks for the indigent,” Id. at 356, 83 S.Ct. at 816, leaving him with “only the right to a meaningless ritual,” Id., and not “a meaningful appeal,” Id. at 358, 83 S.Ct. at 817. Blankenship faced that exact circumstance when his case was reviewed by the Texas Court of Criminal Appeals and was thus denied his equal protection right to counsel.
Beginning with Griffin v. Illinois, where it was held that equal protection was not afforded an indigent appellant where the na*1209ture of the appellate review “depend[ed] upon the amount of money he has,” 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956), and continuing through Douglas v. California, Boss v. Mojfitt, and Pennsylvania v. Finley, the Supreme Court has consistently held that a state may not deny an indigent convict meaningful access to the appellate process. States that have established an appellate process must find “means of affording adequate and effective appellate review to indigent defendants.” Griffin, 351 U.S. at 20, 76 S.Ct. at 591.
While the Supreme Court has found no equal protection right to counsel where it judged an attorney to be unnecessary for meaningful access to the process of seeking discretionary review, Ross, 417 U.S. 600, 94 S.Ct. 2437, counsel is necessary for meaningful access to the Texas Court of Criminal Appeals’ review on the merits as sought by the State. Once a petition for discretionary review has been granted, appointment of counsel is statutorily required for the discretionary review on the merits.2 See Polk v. Texas, 676 S.W.2d 408, 411 (Tex.Crim.App.1984). After the Polk decision, the Texas Legislature saw fit to amend the statute in 1987 to make even more explicit the statutory right to counsel for a discretionary review on the merits, thus registering its concurrence on the importance of counsel for a review on the merits. See Peterson v. Jones, 894 S.W.2d 370, 372-73 (Tex.Crim.App.1995) (citing Acts 1987, 70th Leg., ch. 979, secs. 2, 3, eff. Sept. 1, 1987).3 Given that the Texas Legislature and Texas’s highest criminal court have assessed the Texas criminal appellate process and found the appointment of counsel to be a necessary part of that process, Blankenship’s equal protection right to meaningful access” to the appellate process was glaringly disregarded by the absence of counsel. The lack of an attorney diminished Blankenship’s access to the appellate process to the point of non-existence.
2. Blankenship’s Due Process Right to Counsel
In addition to satisfying the Equal Protection Clause, a state must satisfy the Due Process Clause where it establishes appellate review as a part of a state’s trial system of criminal cases. Evitts, 469 U.S. at 393, 105 S.Ct. at 834; Griffin, 351 U.S. at 18, 76 S.Ct. at 590. In an appeal as of right, an indigent convict attempting to demonstrate that his conviction is unlawful has a clearly established right to counsel. Douglas, 372 U.S. 353, 83 S.Ct. 814. Denial of counsel to an indigent defending against an appeal by the State of a vacated conviction is at least as compelling. Such an appellee is protecting an even greater interest than that in Douglas—his innocence.
The due process basis for the right to appellate counsel derives from the defendant having an interest, i.e., liberty, that he needs “shielded” from the state. See Ross, 417 U.S. at 610-11, 94 S.Ct. at 2443-44; United States v. Palomo, 80 F.3d 138, 142 (5th Cir.1996); see also Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656 (1973) (because probation revocation involves the loss of liberty, due process must be accorded a probationer and in “certain cases ... fundamental fairness—the touchstone of due process—will require ... counsel_”). Blankenship’s liberty depended on his ability to present his case. The Court has described the necessity of appellate counsel to satisfy due process: “To prosecute an appeal, *1210a criminal appellant must face an adversary proceeding that—like a trial—is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant—like an unrepresented defendant at trial—is unable to protect the vital interests at stake.” Evitts, 469 U.S. at 396 & n. 6, 105 S.Ct. at 830 & n. 6; see also Gagnon, 411 U.S. at 790, 93 S.Ct. at 1763 (in probation revocation hearing where issue is complex, due process requires counsel). Without counsel, the appeal is a “meaningless ritual” for the convict. Evitts, 469 U.S. at 394, 105 S.Ct. at 834 (quoting Douglas, 372 U.S. at 358, 83 S.Ct. at 817). Without counsel, Blankenship was denied a fair opportunity to obtain an adjudication on the merits. See Evitts, 469 U.S. at 405, 105 S.Ct. at 840 (noting same due process problem in Griffin and Douglas); Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932) (“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.... He requires the guiding hand of counsel at every step in the proceedings against him”).
C. Ross v. Moffitt: Is Counsel a Sword or Shield?
The Supreme Court has found no right to counsel under either the Due Process or Equal Protection Clauses for an indigent petitioning a state court for discretionary review. Ross, 417 U.S. 600, 94 S.Ct. 2437. However, the majority’s reliance on Ross in finding Blankenship to have no constitutional right to counsel is misplaced. The Ross Court addressed the question of whether an indigent petitioner seeking discretionary review of his conviction by a state court had a constitutional right to counsel for the petition-for-review process. That process is a horse of another color compared to a review of a case on the merits initiated by the State, which is the scenario presented by Blankenship. The Ross Court explained that a petitioner seeking review does not have a constitutional right to counsel because a court evaluating a petition for review has a distinct function which does not concern the correctness of a lower court’s adjudication but instead, whether the subject matter of the appeal involves significant public interest or significant legal principles. Ross, 417 U.S. at 615, 94 S.Ct. at 2446. The Court explained that an attorney is not required for the procedures and process involved in a petition for review because such a petition can be assessed based on the record from the court below, and thus no denial of equal protection, or “meaningful access,” occurs.4 Id. at 611-16, 94 S.Ct. at 2444-47. In addition, an indigent petitioning for discretionary review does not have an interest at stake that calls out for due process protection from the resources of the State.
[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 jury’s finding of guilt made by a judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him from 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.
417 U.S. at 610, 94 S.Ct. at 2444 (quoting Gideon, 372 U.S. at 344, 83 S.Ct. at 796). In holding that the petition-for-review process *1211does not implicate a due process right to counsel, the Ross Court was careful to distinguish the interest at stake for a convict seeking discretionary review from the very different character of the interest at stake for a defendant at trial. In the review on the merits of Blankenship’s vacated conviction, the State had the very same purpose as it did in trial: to convert Blankenship’s innocence to guilt. See Id. (“purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt”). Such circumstances, where counsel functions as a “shield” rather than as a “sword,” have never been found devoid of a right to counsel. See Id. In fact, the Court has been careful to maintain due process and equal protection requirements for the appellate process. Evitts, 469 U.S. at 393, 105 S.Ct. at 834.
II. Review under the AEDPA’s § 2254(d)(1)
A. “Clearly Established” Does Not Mean “On AH Fours”
As an initial matter, I take issue with the majority’s logic in devising its scope of review. It simply cannot be that under amended § 2254(d)(1) federal courts may only grant a habeas petition where there is a Supreme Court decision “on all fours” with the habeas petitioner’s factual situation. See supra at p. 1205 (manuscript) (“The Supreme Court never has decided whether a criminal defendant has a right to assistance of counsel on state-requested discretionary review. Therefore, we might easily say that the right was not ‘clearly established.’ ”). The Supreme Court declines to hear most of the cases presented to it and has heard, on average, around 100 cases per year in recent years. See Supreme Court Practice 33, 164 (Robert L. Stern et al. eds., 7th ed. 1993) (presenting docket statistics).
Contrary to the majority’s approach, when amended § 2254(d)(1) makes relief available to a habeas petitioner only if a state court adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court,” it does not limit the granting of habeas petitions to only those petitioners able to present Supreme Court decisions “on all fours,” but rather instructs the federal courts to examine a state court’s decision in relation to the Supreme Court’s body of law, its jurisprudence. See Childress v. Johnson, 103 F.3d 1221 (5th Cir.1997) (reviewing state court adjudication in relation to Supreme Court’s Sixth Amendment jurisprudence); Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir.1996), cert. granted in part, — U.S. -, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997). Under amended § 2254(d)(1), our review concerns the application of federal law, as set out by the Supreme Court, and a petition is not precluded simply because the facts of a petitioner’s case do not precisely track the facts of a ease decided by the Supreme Court. We review state court decisions in relation to “clearly established Federal law,” 28 U.S.C. § 2254(d)(1) (as amended), not federal law as it appears to be “on all fours” with a petitioner’s facts.
The majority explains that it looks only to “positive pronouncement^]” from the Supreme Court, supra at p. 1205 (manuscript), in order to determine what federal law is “clearly established” under § 2254(d)(1). The majority should look at the positive pronouncements by the Supreme Court as recited in the preceding discussion. See discussion infra part I (citing inter alia, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585). The petitioner’s right to counsel is premised on several of the Supreme Court’s more well-known decisions in the area of constitutional criminal procedure. We cannot look only at one case where the Court did not find a right to counsel, as the majority does, but we must do as our task requires and review federal law, as determined by the Supreme Court, and look also to the Court’s decisions finding a right to counsel and the principles, reasoning and circumstances at hand in those cases. Section 2254(d)(1) has effected no change in our regard of what law is and is not “clearly established” in the habeas context. See Hogan v. Hanks, 97 *1212F.3d 189, 192 (7th Cir.1996), cert. denied, 66 U.S.L.W. 3692 (U.S. April 14, 1997) (No. 96-7761); Lindh, 96 F.3d at 869. Both Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and the amended § 2254(d)(1) are designed to ensure that state judgments are not affected by legal rules established after a conviction becomes final. A legal rule or right is “clearly established ” if it was “compelled by existing precedent.” See Saffle v. Parks, 494 U.S. 484, 488, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990); see also Gray v. Netherland, — U.S. -, -, 116 S.Ct. 2074, 2083, 135 L.Ed.2d 457 (1996); Lindh, 96 F.3d at 869 (rejecting any guidance of official immunity doctrine as improper analogy to § 2254(d)(1)). Blankenship’s right to counsel does not depend on any expansion of legal doctrine or articulation of any new legal rule. That right had been announced by the Court long in advance of the Texas Court of Criminal Appeals’ disposition of the State’s appeal and we are compelled by the Court’s precedent.
B. The Proper Standard Applied
In Mata v. Johnson, 99 F.3d 1261, 1266 (5th Cir.1996), vacated in part, 105 F.3d 209 (5th Cir.1997), we extended our application in Drinkard v. Johnson, 97 F.3d 751 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1114, — L.Ed.2d - (1997), of Landgrafv. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), to the AED-PA’s amendments to § 2254 and held that all of amended § 2254’s standards of review are immediately applicable. In Mata we explained what amended § 2254(d)(1) requires of us in our review of habeas petitions. Under the amended statute, our inquiry must be “whether a state judge could reasonably read Supreme Court precedent as permitting the result of which [the petitioner] now complains.” Mata, 99 F.3d at 1268; see also Penry v. Lynaugh, 492 U.S. 302, 350, 109 S.Ct. 2934, 2963, 106 L.Ed.2d 256 (1989) (Scalia, J., concurring in part, dissenting in part).
In Drinkard, we delved into the distinctions between mixed fact-law questions and purely legal questions as we addressed the language of amended § 2254(d)(1) with its “contrary to” and “unreasonable” terminology. Such a distinction is often difficult to make as disparate factual circumstances, more often than not, shape questions to be that of mixed law and fact. Thus, most habeas petitioners will be required to demonstrate that the ruling of the state court is an unreasonable application of clearly established federal law as the Supreme Court has determined it. However, the amended statute provides alternative modes of inquiry because we look to the “adjudication of the claim,” 28 U.S.C. § 2254(d) (as amended), which may present a compilation of issues for our examination, and thus it will also often be the case that petitioners demonstrate that the adjudication of their claim was either “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1) (as amended) (emphasis added).5 See Childress v. Johnson, 103 F.3d 1221, 1225 (5th Cir.1997) (“To prevail, [the petitioner] must show that the state courts’ resolution of his constitutional claim was ‘contrary to’ or ‘involved an unreasonable application of Supreme Court precedent.”); Hall v. Washington, 106 F.3d 742, 745 (7th Cir.1997); Ford v. Ahitow, 104 F.3d 926, 936 (7th Cir.1997) (noting that under amended § 2254(d)(1) petitioner must show that state court adjudication was contrary to clearly established Supreme Court case law, or was an unreasonable application of clearly established Supreme Court case law). The “unreasonableness” standard leaves the state court’s conclusion intact if there is more than one plausible legal outcome. See Mata, 99 F.3d at 1268 (“a reasonable, good faith application of Supreme Court precedent will immunize the state court conviction from feder*1213al habeas reversal”). However, Congress would not have used the standard of unreasonableness if it was commanding total deference to state courts’ decisions. “Some decisions will be at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary, that a writ must issue.” Hall, 106 F.3d at 745. At the same time, the “contrary to” aspect of § 2254(d)(1) dictates that when a legal issue is considered, the law “as determined by the Supreme Court” governs. “Section 2254(d) requires us to give the state courts’ opinions a respectful reading, and to listen carefully to their conclusions, but when the state court addresses a legal question, it is the law ‘as determined by the Supreme Court of the United States’ that prevails.” Fern v. Gramley, 99 F.3d 255, 260 (7th Cir.1996) (quoting Lindh, 96 F.3d at 869); see also U.S. Const. art. VI, supremacy clause.
Given the multiple sources of an indigent convict’s right to counsel established by the Supreme Court and the limited circumstances in which the Supreme Court has found no right to counsel, a state court judge could not reasonably read the Supreme Court’s positive pronouncements of the right to counsel to say that Blankenship does not have a right to counsel for a review on the merits, as sought by the State. Such a holding is not only unreasonable, it is also contrary to federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1) (as amended). Blankenship clearly had a constitutional right to counsel. Such was well established at the time that the Texas Court of Criminal Appeals granted the State’s petition for review and heard the State’s case. The cases recognizing the right to counsel for “critical stages,” the right to counsel on a first appeal as of right, the right to due process where a liberty interest is at stake, and the right to meaningful access to the appellate process under the Equal Protection Clause are dispositive of this issue. See discussion infra part I.
III. Conclusion
Recognizing Blankenship’s right to counsel does not expand the Supreme Court’s clearly established right to counsel jurisprudence, but rather, it serves as an application of its pronouncements that bind our decisions. When the State was permitted to take up its sword in the Texas Court of Criminal Appeals it became obliged to provide Blankenship a lawyer to hold his shield.
Blankenship was clearly denied his constitutional right to counsel. The state court resolution of this constitutional claim offends clearly established Supreme Court precedent and we must reverse and remand to the district court with instructions to issue the great writ.
. Only a minority of states permit die State to seek discretionary review of criminal cases. See, e.g., Alaska R.App.P. 402(a)(1); Fla.R.App.P. 9.030(a)(2); Iowa Code Ann. § 814.5(2); Minn. R.Crim.P. 29.04; N.C.Gen.Stat. § 7A-31; Tex. Code Crim.Pro. art. 44.45(b)(1) & 4.04 § 2.
. Such is required whether the review is sought by the defendant, the State, or on the court's own motion, as permitted under Tex.Code Crim.Proc. Ann. art. 44.45. See Polk, 676 S.W.2d at 411.
. The Peterson court recited the statutory requirements for counsel for an indigent convict.
Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent ..., the court shall appoint one or more practicing attorneys to defend him. An attorney appointed under this subsection shall represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel. Tex.Code Crim.Proc.Ann. art. 26.04(a).
Article 1.051(d)(2), in relevant part, requires a trial court to appoint counsel to represent an indigent defendant in: "an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted.”
Peterson, 894 S.W.2d at 373.
. The majority ignores this clear articulation by Justice Rehnquist of the context for Ross's right to counsel question. See slip op. supra at p. 2101 (manuscript). In Ross the Court gave, as one of its reasons for denying the right to counsel to a indigent convict-petitioner in the petition-for-review process, the fact that the appellate record was created while the indigent had counsel in proceedings below and that such a record was an “adequate basis for [the North Carolina Supreme Court's] decision to grant or deny review.” Ross, 417 U.S. at 615, 94 S.Ct. at 2446. The Court explained that it was rejecting a right to counsel for the limited context of the process of the state court deciding if a case presented a significant public interest or legal issue worthy of taking the case for review. Id. The Supreme Court did not relate that holding in any way to the issue of entitlement to counsel for the actual review on the merits. The Court provided no basis for the majority’s extrapolation that Ross forecloses Blankenship’s petition. The majority's reasoning fails to acknowledge that the Court was considering the necessity of an attorney to the state supreme court’s assessment of the worthiness of a case for discretionary review.
. The majority contradicts itself by asserting a sharply bifurcated inquiry of either “contrariness” or "reasonableness” of the state court decision, invoking the " 'contrary to' prong,” see maj. op. supra at p. 1210 n. 4, and then applying language associated with "reasonableness” inquiries, see maj. op. supra pp. 1205-06 (citing Mata’s reasonableness analysis). The majority claims one approach but actually follows another.