with whom Judges MOORE and CLAY join dissenting.
Like Judge Rogers, I disagree with the Majority’s conclusion that I sham, Bronaugh, and Searcy are in direct conflict with White v. Schotten. Moreover, I agree with Judge Rogers that the characterization of Rule 26(B) for purposes of answering the constitutional question is a different issue from how to characterize Rule 26(B) for purposes of the AEDPA statute of limitations. Judge Rogers nonetheless concurs in the judgment, thus concluding that there is no constitutional right to counsel at this stage. I cannot concur in the Majority opinion because I believe it takes the wrong analytical approach to determining the existence of a constitutional right to counsel at this stage. I cannot concur in the judgment, like Judge Rogers because, in this admittedly close case, where we are called upon to determine whether the Federal Constitution guarantees a right to counsel at this stage, I would hold that Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) and its progeny, including Halbert v. Michigan, — U.S.-, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005), guarantee such a right. I respectfully dissent.
I.
I must state at the outset that the main flaw with the Majority opinion is that the analysis is irrelevant. -The Majority’s main conclusion that White v. Schotten was “incorrectly decided, both because it misread state law and because its holding is at odds with the structure and function of AEDPA,” misses the mark by a country mile. The question in this case is a constitutional one and in that vein we need not and ought not defer to the Ohio Supreme Court or to some reading of AEDPA.
As for the statutory question that the Majority focuses upon, it finds that White and its subsequent cases are in open and direct conflict. The conflict, purportedly between a holding that Rule 26(B) is part of the direct review process and the Majority’s insistence that AEDPA cannot otherwise properly function is, in my opinion, manufactured. The concurrence asserts there is some tension between the cases, and this is undoubtedly true. But, it is not the sort of tension that mandates the conclusion the Majority reaches. In fact, the result of the Majority’s opinion does not even logically follow from its reasoning.
The Majority appears to adopt the following analysis. First, AEDPA’s statute of limitations begins to run at the conclusion of the direct appeal process. Second, Rule 26(B) provides for the reopening of a direct appeal due to ineffective assistance of counsel at the appellate stage. Third, Rule 26(B) provides that an application under Rule 26(B) must be filed “within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.” Fourth, because AEDPA’s statute of limitations cannot start until the conclusion of direct appeals, and because an application under Rule 26(B) can in some circumstances be filed at any time (provided there is good cause), if a delayed Rule 26(B) motion is considered part of the *361direct appeal of right, then “[t]he statute of limitations provision of the AEDPA would thus be effectively eliminated, a clearly unacceptable result.” Maj. Op. at 348 (quoting Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.2001)). Fifth, therefore, the purpose and structure of AEDPA demand that Rule 26(B) be considered a collateral attack provision such that the AEDPA statute of limitations can begin to run at the earliest possible point. Sixth, there is no right to counsel for collateral appeals. Seventh, Lopez has no constitutional right to counsel for his Rule 26(B) application. There are flaws in this reasoning beginning at step four.
Rule 26(B), as noted above, provides that an application for “reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the application shows good cause for filing at a later time.” App. R. 26(B) (emphasis added). Thus, in the ordinary course, a Rule 26(B) application must be filed within ninety days. An application under Rule 26(B) does not extend the forty-five day time limit to file a notice of appeal with the Ohio Supreme Court. Ohio Sup.Ct. Rule II, Sec. 2(A)(1)(a). Whether a defendant flies a Rule 26(B) application within ninety days or appeals to the Ohio Supreme Court within forty-five, neither ordinary option effectively eliminates AEDPA’s statute of limitations. In fact, in most cases, a Rule 26(B) application will be ruled upon prior to or near the same time the Ohio Supreme Court denies or grants certiorari. Thus, the applicable time limits ensure that AEDPA will begin as early as possible. The Majority reasons that because Rule 26(B) permits the filing of some applications “at a later time” for “good cause,” applications may effectively be filed at any time by defendants seeking to delay the running of AEDPA’s statute of limitations ad infini-turn. Finding this outcome offensive to good sensibilities, the Majority concludes that Rule 26(B) cannot possibly be a part of the direct review process. The Majority’s concerns on this front — both that applications may easily be filed late and that late applications somehow undermine the structure and purpose of AEDPA — are in reality, illusory.
First, the Ohio courts have adopted an extremely stringent standard for meeting “good cause.” In fact, in State v. Williams, 2005 WL 1177879 (Ohio App. 8 Dist.2005), the Court held that the “good cause” standard was not met. Williams had advanced, as grounds for his failure to timely file within ninety days, that he did not have counsel, that he was not timely provided with the transcripts to prepare an application of error, and that he was mentally retarded — a fact found by the trial court. Id. at ¶ 4 (Despite these obstacles, once Williams was provided with the transcripts, he did file his application within ninety days). The court found these factors irrelevant noting that “[i]t is well established that a lack of legal knowledge, lack of counsel and lack of transcripts as well as other records do not constitute good cause.” Id. (citations omitted). Further, the court noted that “an applicant’s assertion ‘that he did not know of the remedy, that his lawyers never told him about it, and that his impaired mental abilities prevented him from learning and using the remedy’ did not establish good cause for the untimely filing of an application for reopening.” Id. Surely the State of Ohio may interpret its own reopening standard, but if an indigent and mentally retarded defendant with no access to the transcript or other record cannot demonstrate good cause for failure to timely file, I am not so sure there will be such a plethora of delayed Rule 26(B) applications granted by the Ohio courts that will wreak *362catastrophic doom upon AEDPA’s statute of limitations.
Second, even if there were such a deluge of delayed Rule 26(B) applications, granted by the Ohio courts, the Majority fails to explain how this would undermine the purpose and structure of AEDPA if considered part of the direct appeal. It seems to me to be both perfectly reasonable and also legally correct for the AEDPA statute of limitations to begin to run at the earliest point — that being following the denial of certiorari from the Ohio Supreme Court or the disposition of a timely filed Rule 26(B) motion. Likewise, the AEDPA statute of limitations should not begin to run during the ninety days in which a timely Rule 26(B) motion may be filed. Finally, I fail to see why it would be inappropriate to toll AEDPA’s one-year statute of limitations while a delayed application is pending before the Ohio courts.
The Majority’s real concern, as I understand it, is with a defendant who has failed to comply with AEDPA’s one-year statute of limitations filing a Rule 26(B) application in state court and claiming that direct review is not yet complete and therefore the AEDPA statute of limitations has yet to start running. The argument that a delayed Rule 26(B) application could restart the AEDPA statute of limitations has already been raised and rejected by this Court. See Bronaugh v. Ohio, 235 F.3d 280 (6th Cir.2000). Instead of letting sleeping dogs lie, however, the majority performs legal gymnastics with precedent, labels legitimate tension as direct conflict, and reaches a conclusion that reeks of form over substance.
II.
The constitutional question in this case, unlike the statutory one, is admittedly a close call. The procedures Ohio has enacted here as Rule 26(B) do not, in my opinion, clearly fall on one side of the constitutional dividing line between the direct review and collateral attack processes. Rather, the procedures under Rule 26(B), having aspects of both direct and collateral review, fall somewhere in the middle. This Court should therefore answer the question of classification — that is, whether Ohio’s Rule 26(B) is more appropriately classified with Douglas v. California or contrarily with Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). To do so, it is essential to review Rule 26(B) in light of Halbert’s analysis.
In Halbert v. Michigan, the Supreme Court 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.” 125 S.Ct. at 2586. Ohio, like Michigan, has no Federal Constitutional obligation to provide for appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 38 L.Ed. 867 (1894). Once a state chooses, however, to provide such a procedure, it may not “bolt the door to equal justice” to indigent defendants. Griffin v. Illinois, 351 U.S. 12, 24, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring in judgment). In Halbert, the Supreme Court noted that its decisions in this area are supported by both the Equal Protection and Due Process Clauses. Halbert, 125 S.Ct. at 2587. “ ‘The equal protection concern relates to the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs,’ while ‘the due process concern homes in on the essential fairness of the state-ordered proceedings.’ ” Id. (quoting M.L.B. v. S.L.J., 519 U.S. 102, 120, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (internal citations and alterations omitted)).
*363In concluding that Michigan’s procedures are more appropriately classified with Douglas rather than Ross, the Supreme Court held that two aspects of Michigan’s procedures compelled the constitutional conclusion — “First, the Michigan Court of Appeals must look to the merits of an appellant’s claims in ruling on the application for leave to appeal. Second, indigent defendants pursuing review in the intermediate appellate court are frequently ill-equipped to represent themselves.” Id. at 2590. When the Michigan Court of Appeals received an application to appeal, it could respond in several ways— including a denial of leave to appeal — all of which “necessarily entails some evaluation of the merits of the applicant’s claims.” Id. at 2591. Review by the intermediate court of appeals necessarily entails some review of the merits because intermediate courts of appeal sit as an error-correction instance. Id. The Michigan Court of Appeals therefore, “because it is an error-correction instance, is guided in responding to leave to appeal applications by the merits of the particular defendant’s claims, not by the general importance of the questions presented.” Id. In fact, a review of the Michigan Court of Appeals decisions revealed that it routinely cited “lack of merit in the grounds presented” as a basis for denying defendants leave to file an appeal. Id.
This differentiates the intermediate appellate level from the discretionary appellate level at the state’s highest court or the Supreme Court of the United States. Neither state supreme courts or the Supreme Court of the United States exist merely to correct errors of the lower courts, but rather sit to address other matters of larger public import. Id. In Michigan, for example, the Supreme Court considers whether a case presents an “issue [of] significant public interest” or “involves legal principles of major significance to the state’s jurisprudence” in exercising its discretionary authority to grant review of an appeal. See Mich. Ct. Rule 7.302(B)(2)-(3) (2005). Furthermore, the Supreme Court noted that generally in second-tier discretionary review, a defendant will already have had the assistance of appellate counsel. “The attorney appointed to serve at the intermediate appellate court level will have reviewed the trial court record, researched the legal issues, and prepared a brief reflecting that review and research. The defendant seeking second-tier review may also be armed with an opinion of the intermediate appellate court addressing the issues counsel raised. A first-tier review applicant, forced to act pro se, will face a record unreviewed by appellate counsel, and will be equipped with no attorney’s brief prepared for, or reasoned opinion by, a court of review.” Id. at 2592.
Emphasizing the importance of appellate counsel, the Supreme Court noted that “comparable materials prepared by trial counsel are no substitute for an appellate lawyer’s aid.” Id. Moreover, “a transcript and a motion by trial counsel are not adequate stand-ins for an appellate lawyer’s review of the record and legal research. Without guides keyed to a court of review, a pro se applicant’s entitlement to seek leave to appeal to Michigan’s intermediate court may be more formal than real.” Id.
The Supreme Court then turned to an indigent defendant’s probable ability to navigate the appellate waters without the assistance of counsel. There, the Court concluded that “[pjersons in Halbert’s situation are particularly handicapped as self-representatives.” Id. at 2592-93 (noting that 68% of the state prison population did not finish high school and most lack basic literary skills and that “seven out of ten inmates fall in the lowest two out of five levels of literacy — marked by an inability to do such basic tasks as write a brief *364letter to explain an error on a credit card bill, use a bus schedule, or state in writing an argument made in a lengthy newspaper article.”)• The Court then noted the complexity of Michigan’s procedures and then-potential for intimidating inmates attempting to proceed without counsel and stated that “[njavigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like Hal-bert, who have little education, learning disabilities, and mental impairments.” Id. at 2593. Finally, the Court noted that “Michigan’s Court of Appeals would still have recourse to summary denials of leave applications in cases not warranting further review. And when a defendant’s case presents no genuinely arguable issue, appointed counsel may so inform the court.” Id. at 2594 (citing Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)).
“Cases on appeal barriers encountered by persons unable to pay their own way ... ‘cannot be resolved by resort to easy slogans or pigeonhole analysis.’ ” Id. at 2587 (quoting M.L.B. v. S.L.J. 519 U.S. 102, 120, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996)). This case especially requires in-depth analysis because, as I stated earlier, Ohio’s Rule 26(B) does not fit neatly under either Douglas or Ross. It is my opinion, however, after reviewing Ohio’s procedures, and Douglas, Ross, and Halbert’s constitutional considerations, that this case is more like Douglas and Halbert and more unlike Ross. Thus, I would hold the Due Process Clause and fundamental fairness require that Ohio appoint indigent defendants counsel at the Rule 26(B) application stage.
In this case, Lopez filed a pro se application to reopen his appeal alleging that his lawyer in his direct appeal was ineffective. The Ohio Court of Appeals denied his motion to reopen. State v. Lopez, No. 74096, 2000 WL 574441 (Ohio Ct.App. May 11, 2000). The court noted that “[a]n application for reopening will be granted ‘if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.’ ” Id. (citing App. R. 26(B)(5)). To make the determination as to whether reopening is warranted, the court noted that it applies “the two-prong analysis found in Strickland v. Washington.” Id. Thus, to succeed in reopening an appeal, “the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id.
It is clear, therefore, that the application for leave to reopen here, like the application for leave to appeal in Halbert, “necessarily entails some evaluation of the merits of the applicant’s claims.” Halbert, 125 S.Ct. at 2591. The particularities of Ohio’s Rule 26(B) application demonstrate that the application stage is in fact a near-full-review on the merits. Rule 26(B)(5) itself requires the court to state the reasons for its denial of the application to reopen. The Ohio Court of Appeals applies the Strickland standard in reviewing applications requiring the defendant to meet both prongs of the test and demonstrate that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.” Ohio App. R. 26(B)(5). As the court noted in Lopez’s case, this requires a defendant to prove that counsel was deficient — that is, that counsel’s performance fell below an objective standard of reasonableness. See Wig*365gins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). This requires a defendant, who is likely uneducated, and unable to complete basic tasks, to assess counsel’s strategic choices, consult American Bar Association standards, and write a brief explaining how counsel was constitutionally deficient. If a defendant is able to complete this complicated task, he is still required to meet Strickland’s prejudice prong, and demonstrate that counsel’s deficient performance rendered the trial unfair and the result unreliable. See Mapes v. Tate, 388 F.3d 187, 191 (6th Cir.2004) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).
The fact that a defendant must demonstrate prejudice further confirms that a Rule 26(B) application goes to the merits. To succeed, a defendant must show that because of appellate counsel’s failure to point out some errors at the trial level, the trial and its outcome were unfair. Appellate counsel is not ineffective by failing to raise an issue that is unlikely to warrant relief in the form of a new trial or even outright release. Thus, in ruling on a Rule 26(B) application, the Ohio Court of Appeals necessarily is ruling on the merits of the defendant’s underlying claims.
This is further evident by the application of Rule 26(B) in practice. The difference in the Ohio Court of Appeals standards at the stage one of Rule 26(B) where it applies the Strickland standard to determine whether the defendant has demonstrated deficient performance and raised a “genuine issue” or “colorable claim” as to his entitlement to relief, and its application of the Strickland standard at stage two of Rule 26(B) where the appeal is reopened and the issue is whether the defendant has demonstrated deficient performance and a “reasonable probability” that he was prejudiced is in my opinion, a distinction without a difference. Moreover, in my research, I uncovered only nine cases in the last ten years where the Ohio Court of Appeals granted reopening on a Rule 26(B) application but then ultimately denied the appeal.1 It appears to me that relief at stage one of Rule 26(B) is in the ordinary course a de facto ruling on stage two. Therefore, while Rule 26(B) is not exactly like the procedures in Halbert, because Halbert dealt purely with a first-tier appeal, Rule 26(B) is similar in that it requires the intermediate court of appeals to render a ruling on the underlying merits of the defendant’s appeal.
Ohio’s Rule 26(B) is also more appropriately aligned with Douglas and Halbert than Ross, because the reasons why the Due Process Clause requires the state to provide counsel at the first-tier appellate review stage but not the second point in favor of requiring counsel at stage one of Ohio’s Rule 26(B). First, the Ohio Court of Appeals sits as an error-correction instance. Thus, Rule 26(B) applications and their review is not discretionary. If an error was made the Ohio Court of Appeals corrects it. It does not deny Rule 26(B) applications that fail to raise constitutional issues of great importance or resolution of which are not important to the state’s jurisprudence. Second, one of the main reasons supporting the Supreme Court’s decision in Ross was that “a defendant who had already benefitted from counsel’s aid *366in a first-tier appeal as of right would have, ‘at the very least, a transcript or other record of trial proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case.’ ” Halbert, 125 S.Ct. at 2587 (quoting Ross, 417 U.S. at 615, 94 S.Ct. 2437).
This is not so for a defendant seeking relief in a Rule 26(B) application to reopen. Implicit in the Supreme Court’s opinion in Ross is the assumption that appellate counsel was effective. Moreover, in discretionary appeals to a state supreme court or the Supreme Court of the United States, an appellant may only raise issues that were already raised on appeal. In the Rule 26(B) context, however, a defendant necessarily may only raise issues that were not already raised on appeal. That is, the defendant is raising issues that are new because appellate counsel failed in the first instance to raise them. Thus, the defendant will not be armed with a transcript, record, brief, or opinion that addresses any of his claims.2 Further, the vast majority of applications under Rule 26(B) are asserting appellate counsel’s ineffectiveness for failing to raise trial counsel’s ineffectiveness. This means that in most situations, a defendant’s Rule 26(B) application is started from scratch and must assert error that has not been raised or researched by any counsel or ruled upon by any court.3 In fact, Rule 26(B)(2)(c) itself belies the Majority’s characterization, for it specifically states that a defendant’s application is limited to “[o]ne or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel’s deficient representation.” Ohio App. R. 26(B)(2)(c) (emphasis added).
Furthermore, the same issues regarding an indigent defendant’s inability to adequately address legal matters in the appellate process raised in Halbert are true for the defendants in Ohio. And, like the leave to appeal application in Halbert, the leave to reopen application in Rule 26(B) is complex and “may intimidate the uncoun-seled.” Halbert, 125 S.Ct. at 2593. A *367Rule 26(B) application requires the following:
(2) An application for reopening shall contain all of the following:
(a) The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken;
(b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
(c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel’s deficient representation;
(d) A sworn statement of the basis for the claim that appellate counsel’s representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record;
(e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies.
(3) The applicant shall furnish an additional copy of the application to the clerk of the court of appeals who shall serve it on the attorney for the prosecution. The attorney for the prosecution, within thirty days from the filing of the application, may file and serve affidavits, parts of the record, and a memorandum of law in opposition to the application.
(4) An application for reopening and an opposing memorandum shall not exceed ten pages, exclusive of affidavits and parts of the record. Oral argument of an application for reopening shall not be permitted except at the request of the court.
(5)An application for reopening shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.
Ohio App. R. 26(B). There can be no doubt these procedures are complex for those who have completed four years of college and three years of law school; they must be insurmountable for the seventy-percent of defendants who did not complete high school and lack basic literary skills. Finally, like Halbert, Ohio does have an interest in reducing the workload of its judiciary, but even if, as I believe the Federal Constitution requires, the state were required to appoint counsel, its court of appeals “would still have recourse to summary denials of leave applications in cases not warranting further review,” Halbert, 125 S.Ct. at 2594, and appointed counsel who discovers no merit to a Rule 26(B) application may so advise the client and if the client wishes to proceed, may file Ohio’s equivalent of an Anders brief.
In light of the foregoing factors, while Ohio’s Rule 26(B) is not as easily categorized as Michigan’s procedures in Halbert, all of the factors considered by the Supreme Court in that case point me in the direction of concluding that there is a constitutional right to counsel at this stage of proceedings.
III.
In conclusion, I would hold that the Federal Constitution guarantees indigent defendants appointed counsel at state expense to assist in preparing Rule 26(B) applications to reopen them appeal. I would not find White v. Schotten and our subsequent cases in direct conflict and I *368do not believe that any tension that exists between them mandates the conclusion the Majority reaches. Moreover, in respectful disagreement with the Majority and the Ohio state courts, a state’s characterization of its procedures does not control its characterization for federal constitutional purposes. Therefore, I disagree with the Majority’s conclusion that White was “incorrectly decided, both because it misread state law and because its holding is at odds with the structure and function of AEDPA.” While I dispute the Majority’s conclusions on both those points, even if the Majority were correct, it simply does not matter in light of the Constitution’s requirements. In that sense, White v. Schotten misread state law no more so than did Douglas v. California and Halbert v. Michigan.
. See State v. Sampson, 2003 WL 1735223 (Ohio Ct.App. Mar. 31, 2003); State v. Collins, 2002 WL 31002797 (Ohio Ct.App. Sept. 3, 2002); State v. Adkins, 2002 WL 1773153 (Ohio Ct.App. July 24, 2002); State v. Bachtel, 2002 WL 985474 (Ohio Ct.App. May 10, 2002); State v. Kenney, 2000 WL 699673 (Ohio Ct.App. May 10, 2000); State v. Sleppy, 1999 WL 115084 (Ohio Ct.App. Mar.5, 1999); State v. Moore, 1998 WL 751453 (Ohio Ct. App. Oct.23, 1998); State v. Blackburn, 1996 WL 570869 (Ohio Ct.App. Sept.26, 1996); State v. Robbins, 1996 WL 363556 (Ohio Ct. App. June 12, 1996).
. The Majority opinion asserts the very opposite. According to the Majority, "a defendant seeking review under Rule 26(B) has already had the assistance of counsel, 'who will have reviewed the trial court record, researched the legal issues, and prepared a brief reflecting that review and research.' ” The Majority’s position, in order to support this assertion, necessarily must be that all Rule 26(B) applications are meritless — they must be if a defendant has already had this assistance. Of course this is not so. The Majority may respond that my position implies that all Rule 26(B) applications are meritorious. This is not so either. My position merely recognizes that a defendant with a meritorious position will not have had the benefit of effective appellate counsel like Ross and the Majority presume. In those situations where a defendant does not have a meritorious claim, appointed counsel may simply file an Anders brief and withdraw, and the Ohio Court of Appeals would retain the authority for summary denials.
. The Majority further strains to align Rule 26(B) with Ross when it states that in addition to already having appellate counsel, a defendant will have already been before the court which "will be familiar with the record, having already examined it albeit for other, errors, during the direct appeal." Surely this can't be so. The function of an appellate court is not to review the record on appeal for any and all errors whatsoever. The function of an appellate court is to review those errors asserted by the appellant. If the Majority would chastise a court, as I'm certain it would, for reaching and ruling upon issues not before it, I find it a bit much for the Majority to use a court's earlier review of a case for different issues, against a defendant in this context.