HALBERT v. MICHIGAN

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605 OCTOBER TERM, 2004
Syllabus
HALBERT v. MICHIGAN
certiorari to the court of appeals of michigan
No. 03–10198. Argued April 25, 2005—Decided June 23, 2005
In Douglas v. California, 372 U. S. 353, this Court held that, in criminal
proceedings, a State must provide counsel for an indigent defendant in
a first appeal as of right. Two considerations were key: (1) An appeal
“of right” yields an adjudication on the “merits,” id., at 357, and
(2) first-tier review differs from subsequent appellate stages “at which
the claims have once been presented by a lawyer and passed upon by
an appellate court,” id., at 356. Later, in Ross v. Moffitt, 417 U. S. 600,
the Court held that a State need not appoint counsel to aid a poor person
seeking to pursue a second-tier discretionary appeal to the State’s high
est court, or, thereafter, certiorari review in this Court. Id., at 610–
612, 615–618. The Douglas rationale does not extend to second-tier
discretionary review, the Court explained, because, at that stage, error
correction is not the reviewing court’s prime function. 417 U. S., at
615. Principal criteria for state high court review, Ross noted, include
whether the issues presented are of significant public interest, whether
the cause involves legal principles of major significance to the State’s
jurisprudence, and whether the decision below is in probable conflict
with the high court’s precedent. Ibid. Further, a defendant who has
received counsel’s aid in a first-tier appeal as of right would be armed
with a transcript or other record of trial proceedings, a brief in the
appeals court setting forth his claims, and, often, that court’s opinion
disposing of the case. Ibid.
Michigan has a two-tier appellate system. The State Supreme Court
hears appeals by leave only. The intermediate Court of Appeals adjudi
cates appeals as of right from criminal convictions, except that a defend
ant convicted on a guilty or nolo contendere plea who seeks intermedi
ate appellate court review must apply for leave to appeal. Under
Michigan law, most indigent defendants convicted on a plea must pro
ceed pro se in seeking leave to appeal to the intermediate court. In
People v. Bulger, the Michigan Supreme Court held that the Fourteenth
Amendment’s Equal Protection and Due Process Clauses do not secure
a right to appointed counsel for plea-convicted defendants seeking re
view in the intermediate appellate court for these reasons: Such review
is discretionary; plea proceedings are shorter, simpler, and more routine
than trials; and a defendant entering a plea accedes to the State’s funda
mental interest in finality.

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Syllabus
Petitioner Halbert pleaded nolo contendere to two counts of criminal
sexual conduct. During Halbert’s plea colloquy, the trial court advised
him of instances in which it “must” or “may” appoint appellate counsel,
but failed to tell him that it could not appoint counsel in any other
circumstances, including Halbert’s own case. The day after his sen
tence was imposed, Halbert moved to withdraw his plea. Denying the
motion, the trial court stated that Halbert’s proper remedy was to ap
peal to the State Court of Appeals. Twice thereafter, Halbert asked
the trial court to appoint counsel to help him prepare an application for
leave to appeal to the intermediate court, stating that his sentence had
been misscored, that he needed counsel to preserve the issue before
undertaking an appeal, that he had learning disabilities and was men
tally impaired, and that he had been obliged to rely on fellow inmates in
preparing his pro se filings. The court denied Halbert’s motion, citing
Bulger. Halbert then filed a pro se application for leave to appeal, as
serting sentencing error and ineffective assistance of counsel and seek
ing, inter alia, remand for appointment of appellate counsel. The
Court of Appeals denied leave “for lack of merit in the grounds pre
sented.” The Michigan Supreme Court declined review.
Held: The Due Process and Equal Protection Clauses require the appoint
ment of counsel for defendants, convicted on their pleas, who seek access
to first-tier review in the Michigan Court of Appeals. Pp. 616–624.
Two aspects of the Michigan Court of Appeals’ process following
plea-based convictions compel the conclusion that Douglas, not Ross,
controls here. First, in ruling on an application for leave to appeal, that
court looks to the merits of the appellant’s claims. Second, indigent
defendants pursuing first-tier review in the Court of Appeals are gener
ally ill equipped to represent themselves. A defendant who pleads
guilty or nolo contendere in a Michigan court, although he relinquishes
access to an appeal as of right, is entitled to apply for leave to appeal,
and that entitlement is officially conveyed to him. Of critical impor
tance, the intermediate appellate court, unlike the Michigan Supreme
Court, sits as an error-correction instance. A court Rule provides that
the intermediate court may respond to a leave application in a number
of ways: It may grant or deny the application, enter a final decision,
grant other relief, request additional material from the record, or re
quire a certified concise statement of proceedings and facts from the
lower court. The court’s response to the leave application by any of
these alternatives—including denial of leave—necessarily entails some
evaluation of the merits of the applicant’s claims. Pp. 616–618.
This Court rejects Michigan’s argument that Ross is dispositive here
because review in the intermediate appellate court following a plea

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Syllabus
based conviction is discretionary, given the necessity of filing an applica
tion for leave to appeal. The Ross Court recognized that leave
granting determinations by a State’s highest court turn on consid
erations other than a lower court’s commission of error, e. g., the
involvement of a matter of “significant public interest.” 417 U. S., at
615. Michigan’s Supreme Court, like the highest courts of other States,
sits not to correct errors in individual cases, but to decide matters of
larger public import. By contrast, the intermediate court, as an error
correction instance, is guided in responding to leave to appeal appli
cations by the merits of the particular defendant’s claims, not by the
general importance of the questions presented. Pp. 618–619.
Whether formally categorized as the decision of an appeal or the dis
posal of a leave application, the intermediate appellate court’s ruling on
a plea-convicted defendant’s claims provides the first, and likely the only,
direct review the defendant’s conviction and sentence will receive.
Parties like Halbert, however, are disarmed in their endeavor to gain
first-tier review. Ross emphasized that a defendant seeking State Su
preme Court review following a first-tier appeal as of right earlier had
the assistance of appellate counsel, who will have reviewed the trial
court record, researched the legal issues, and prepared a brief reflecting
that review and research. 417 U. S., at 615. Such a defendant may
also be armed with an opinion of the intermediate appellate court ad
dressing the issues counsel raised. Without such 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.
Cf. Swenson v. Bosler, 386 U. S. 258 (per curiam). Persons in Halbert’s
situation, many of whom have little education, learning disabilities,
and mental impairments, are particularly handicapped as self
representatives. See Kowalski v. Tesmer, 543 U. S. 125, 140 (Gins
burg, J., dissenting). Further, appeals by defendants convicted on
their pleas may be “no less complex than other appeals.” Id., at 141.
Michigan’s complex procedures for seeking leave to appeal after sen
tencing on a plea, moreover, may intimidate the uncounseled. See id.,
at 141–142. The State does have a legitimate interest in reducing its
judiciary’s workload, but providing indigents with appellate counsel will
yield applications easier to comprehend. 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 pre
sents no genuinely arguable issue, appointed counsel may so inform the
court. Pp. 619–623.
The Court disagrees with Michigan’s contention that, even if Halbert
had a constitutionally guaranteed right to appointed counsel for first

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level appellate review, he waived that right by entering a nolo conten
dere plea. At the time he entered his plea, Halbert had no recognized
right to appointed appellate counsel he could elect to forgo. Moreover,
the trial court did not tell Halbert, simply and directly, that in his case,
there would be no access to appointed counsel. Cf. Iowa v. Tovar, 541
U. S. 77, 81. Pp. 623–624.
Vacated and remanded.
Ginsburg, J., delivered the opinion of the Court, in which Stevens,
O’Connor, Kennedy, Souter, and Breyer, JJ., joined. Thomas, J.,
filed a dissenting opinion, in which Scalia, J., joined, and in which Rehn
quist, C. J., joined as to all but Part III–B–3, post, p. 624.
David A. Moran argued the cause for petitioner. On the
briefs were Mark Granzotto, Michael J. Steinberg, Kary L.
Moss, Steven R. Shapiro, and Terence R. Flanagan.
Bernard Eric Restuccia, Assistant Attorney General of
Michigan, argued the cause for respondent. With him on
the brief were Michael A. Cox, Attorney General, and
Thomas L. Casey, Solicitor General.
Gene C. Schaerr argued the cause for the State of Louisi
ana et al. as amici curiae urging affirmance. With him on
the brief were Charles C. Foti, Attorney General of Louisi
ana, Mimi Hunley, Assistant Attorney General, Julie E.
Cullen, Linda T. Coberly, and Charles B. Klein, and by the
Attorneys General for their respective States as follows:
Troy King of Alabama, John W. Suthers of Colorado, Mark
J. Bennett of Hawaii, Steve Carter of Indiana, J. Joseph
Curran, Jr., of Maryland, Jim Hood of Mississippi, Mike
McGrath of Montana, Brian Sandoval of Nevada, Jim Petro
of Ohio, W. A. Drew Edmondson of Oklahoma, Henry D.
McMaster of South Carolina, Lawrence E. Long of South
Dakota, Paul G. Summers of Tennessee, Greg Abbott of
Texas, Mark L. Shurtleff of Utah, and Rob McKenna of
Washington.*
*Briefs of amici curiae urging reversal were filed for the American Bar
Association by Robert J. Grey, Jr., Seth P. Waxman, Paul R. Q. Wolfson,
and Noah A. Levine; and for the National Association of Criminal Defense

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Opinion of the Court
Justice Ginsburg delivered the opinion of the Court.
In 1994, Michigan voters approved a proposal amending
the State Constitution to provide that “an appeal by an ac
cused who pleads guilty or nolo contendere shall be by leave
of the court.” Mich. Const., Art. 1, § 20. Thereafter, “sev
eral Michigan state judges began to deny appointed appel
late counsel to indigents” convicted by plea. Kowalski v.
Tesmer, 543 U. S. 125, 127 (2004). Rejecting challenges
based on the Equal Protection and Due Process Clauses of
the Fourteenth Amendment to the Federal Constitution, the
Michigan Supreme Court upheld this practice, and its codifi
cation in Mich. Comp. Laws Ann. § 770.3a (West 2000). Peo
ple v. Harris, 470 Mich. 882, 681 N. W. 2d 653 (2004); People
v. Bulger, 462 Mich. 495, 511, 614 N. W. 2d 103, 110 (2000).
Petitioner Antonio Dwayne Halbert, convicted on his plea
of nolo contendere, sought the appointment of counsel to as
sist him in applying for leave to appeal to the Michigan
Court of Appeals. The state trial court and the Court of
Appeals denied Halbert’s requests for appointed counsel, and
the Michigan Supreme Court declined review.
Michigan Court of Appeals review of an application for
leave to appeal, Halbert contends, ranks as a first-tier ap
pellate proceeding requiring appointment of counsel under
Douglas v. California, 372 U. S. 353 (1963). Michigan urges
that appeal to the State Court of Appeals is discretionary
and, for an appeal of that order, Ross v. Moffitt, 417 U. S. 600
(1974), holds counsel need not be appointed. Earlier this
Term, in Kowalski v. Tesmer, this Court, for prudential rea
sons, declined to reach the classification question posed by
Michigan’s system for appellate review following a plea of
guilty, guilty but mentally ill, or nolo contendere. Today,
Lawyers et al. by Anthony J. Franze, Sheila B. Scheuerman, and Paul
M. Rashkind.
Timothy A. Baughman filed a brief of amicus curiae for Wayne County,
Michigan, urging affirmance.
Elliot H. Scherker and Karen M. Gottlieb filed a brief for the National
Legal Aid & Defender Association as amicus curiae.

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we reach the classification question and conclude that Hal
bert’s case is properly ranked with Douglas rather than
Ross. Accordingly, we hold 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.
I
The Federal Constitution imposes on the States no obliga
tion to provide appellate review of criminal convictions.
McKane v. Durston, 153 U. S. 684, 687 (1894). Having pro
vided such an avenue, however, a State may not “bolt the
door to equal justice” to indigent defendants. Griffin v. Illi
nois, 351 U. S. 12, 24 (1956) (Frankfurter, J., concurring in
judgment); see id., at 23 (same) (“[W]hen a State deems it
wise and just that convictions be susceptible to review by an
appellate court, it cannot by force of its exactions draw a line
which precludes convicted indigent persons . . . from securing
such . . . review.”). Griffin held that, when a State condi
tions an appeal from a conviction on the provision of a trial
transcript, the State must furnish free transcripts to indi
gent defendants who seek to appeal. Id., at 16–20 (plurality
opinion). Douglas relied on Griffin’s reasoning to hold that,
in first appeals as of right, States must appoint counsel
to represent indigent defendants. 372 U. S., at 357. Ross
held, however, that a State need not appoint counsel to aid a
poor person in discretionary appeals to the State’s highest
court, or in petitioning for review in this Court. 417 U. S.,
at 610–612, 615–618.
Cases on appeal barriers encountered by persons unable
to pay their own way, we have observed, “cannot be resolved
by resort to easy slogans or pigeonhole analysis.” M. L. B.
v. S. L. J., 519 U. S. 102, 120 (1996) (internal quotation marks
omitted). Our decisions in point reflect “both equal protec
tion and due process concerns.” Ibid. “The equal protec
tion concern relates to the legitimacy of fencing out would-be

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appellants based solely on their inability to pay core costs,”
while “[t]he due process concern homes in on the essential
fairness of the state-ordered proceedings.” Ibid.; see also
Evitts v. Lucey, 469 U. S. 387, 405 (1985).
Two considerations were key to our decision in Douglas
that a State is required to appoint counsel for an indigent
defendant’s first-tier appeal as of right. First, such an ap
peal entails an adjudication on the “merits.” 372 U. S., at
357. Second, first-tier review differs from subsequent ap
pellate stages “at which the claims have once been presented
by [appellate counsel] and passed upon by an appellate
court.” Id., at 356. Under the California system at issue
in Douglas, the first-tier appellate court independently ex
amined the record to determine whether to appoint counsel.
Id., at 355. When a defendant able to retain counsel pur
sued an appeal, the Douglas Court observed, “the appellate
court passe[d] on the merits of [the] case only after having
the full benefit of written briefs and oral argument by coun
sel.” Id., at 356. In contrast, when a poor person appealed,
“the appellate court [wa]s forced to prejudge the merits [of
the case] before it c[ould] even determine whether counsel
should be provided.” Ibid.
In Ross, we explained why the rationale of Douglas did
not extend to the appointment of counsel for an indigent
seeking to pursue a second-tier discretionary appeal to the
North Carolina Supreme Court or, thereafter, certiorari re
view in this Court. The North Carolina Supreme Court,
in common with this Court we perceived, does not sit as
an error-correction instance. 417 U. S., at 615. Principal
criteria for state high court review, we noted, included
“whether the subject matter of the appeal has significant
public interest, whether the cause involves legal principles
of major significance to the jurisprudence of the State, [and]
whether the decision below is in probable conflict” with the
court’s precedent. Ibid. (internal quotation marks omitted).
Further, we pointed out, a defendant who had already bene

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fited from counsel’s aid in 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.” Ibid.
II
A
Michigan has a two-tier appellate system comprising the
State Supreme Court and the intermediate Court of Appeals.
The Michigan Supreme Court hears appeals by leave only.
Mich. Comp. Laws Ann. § 770.3(6) (West Supp. 2004). Prior
to 1994, the Court of Appeals adjudicated appeals as of right
from all criminal convictions. Bulger, 462 Mich., at 503–504,
614 N. W. 2d, at 106–107. To reduce the workload of the
Court of Appeals, a 1994 amendment to the Michigan Consti
tution changed the process for appeals following plea-based
convictions. Id., at 504, 614 N. W. 2d, at 106–107. As
amended, the State Constitution provides: “In every criminal
prosecution, the accused shall have the right . . . to have an
appeal as a matter of right, except as provided by law an
appeal by an accused who pleads guilty or nolo contendere
shall be by leave of the court.” Mich. Const., Art. 1, § 20.
A defendant convicted by plea who seeks review in the
Michigan Court of Appeals must now file an application for
leave to appeal pursuant to Mich. Ct. Rule 7.205 (2005). In
response, the Court of Appeals may, among other things,
“grant or deny the application; enter a final decision; [or]
grant other relief.” Rule 7.205(D)(2). If the court grants
leave, “the case proceeds as an appeal of right.” Rule
7.205(D)(3). The parties agree that the Court of Appeals,
in its orders denying properly filed applications for leave,
uniformly cites “lack of merit in the grounds presented” as
the basis for its decision. See Tr. of Oral Arg. 21–22, 24, 39.
Under Michigan law, most indigent defendants convicted
by plea must proceed pro se in seeking leave to appeal.

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Michigan Comp. Laws Ann. § 770.3a (West 2000) provides, in
relevant part, that a “defendant who pleads guilty, guilty but
mentally ill, or nolo contendere shall not have appellate coun
sel appointed for review of the defendant’s conviction or sen
tence,” except that:
“(2) The trial court shall appoint appellate counsel for
an indigent defendant [if the] prosecuting attorney seeks
leave to appeal[, the] defendant’s sentence exceeds the
upper limit of the minimum sentence range of the appli
cable sentencing guidelines[, the] court of appeals or the
supreme court grants the defendant’s application for
leave to appeal[, or the] defendant seeks leave to appeal
a conditional plea . . . .
“(3) The trial court may appoint appellate counsel [if
the] defendant seeks leave to appeal a sentence based
upon an alleged improper scoring of an offense variable
or a prior record variable[, the] defendant objected to
the scoring or otherwise preserved the matter for ap
peal[, and the] sentence imposed by the court constitutes
an upward departure from the upper limit of the mini
mum sentence range that the defendant alleges should
have been scored.” § 770.3a(1)–(3).
In People v. Bulger, the Michigan Supreme Court consid
ered whether the Federal Constitution secures a right to ap
pointed counsel for plea-convicted defendants seeking review
in the Court of Appeals. 462 Mich., at 511, 614 N. W. 2d, at
110. Recognizing Douglas and Ross as the guiding deci
sions, 462 Mich., at 511–516, 614 N. W. 2d, at 110–112, the
State Supreme Court concluded that appointment of counsel
is not required for several reasons: Court of Appeals review
following plea-based convictions is by leave and is thus “dis
cretionary,” id., at 506–508, 519, 614 N. W. 2d, at 108, 113;
“[p]lea proceedings are . . . shorter, simpler, and more routine
than trials,” id., at 517, 614 N. W. 2d, at 112; and by entering
a plea, a defendant “accede[s] to the state’s fundamental in

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terest in finality,” ibid. In People v. Harris, the Michigan
Supreme Court, adhering to Bulger, upheld the constitution
ality of § 770.3a. 470 Mich. 882, 681 N. W. 2d 653.
B
Petitioner Halbert pleaded nolo contendere to two counts
of second-degree criminal sexual conduct. App. 23. Dur
ing Halbert’s plea colloquy, the trial court asked Halbert,
“You understand if I accept your plea you are giving up or
waiving any claim of an appeal as of right,” and Halbert an
swered, “Yes, sir.” Id., at 22. The court then advised Hal
bert of certain instances in which, although the appeal would
not be as of right, the court nevertheless “must” or “may”
appoint appellate counsel. The court did not tell Halbert,
however, that it could not appoint counsel in any other cir
cumstances, including Halbert’s own case:
“THE COURT: You understand if I accept your plea
and you are financially unable to retain a lawyer to rep
resent you on appeal, the Court must appoint an attor
ney for you if the sentence I impose exceeds the sentenc
ing guidelines or you seek leave to appeal a conditional
plea or the prosecutor seeks leave to appeal or the Court
of Appeals or Supreme Court grants you leave to appeal.
Under those conditions I must appoint an attorney, do
you understand that?
“THE DEFENDANT: Yes, sir.
“THE COURT: Further, if you are financially unable
to retain a lawyer to represent you on appeal, the Court
may appoint an attorney for you if you allege an im
proper scoring of the sentencing guidelines, you object
to the scoring at the time of the sentencing and the sen
tence I impose exceeds the sentencing guidelines as you
allege it should be scored. Under those conditions I
may appoint an attorney for you, do you understand
that?

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“THE DEFENDANT: Yes, sir.” Id., at 22–23 (alter
ation omitted).1
At Halbert’s sentencing hearing, defense counsel re
quested that the sentences for the two counts run concur
rently, but urged no error in the determination of Halbert’s
exposure under the Michigan sentencing guidelines. Id.,
at 33. The trial court set Halbert’s sentences to run consec
utively. Id., at 35. Halbert submitted a handwritten mo
tion to withdraw his plea the day after sentencing. Denying
the motion, the trial court stated that Halbert’s “proper rem
edy is to appeal to the Michigan Court of Appeals.” Id.,
at 43.
Twice thereafter and to no avail, Halbert asked the trial
court to appoint counsel to help him prepare an application
for leave to appeal to the intermediate appellate court. He
submitted his initial request on a form provided by the State.
Id., at 46–50, 53–57. The trial court denied the request.
Id., at 44–45, 51–52. Halbert next sent the trial court a let
ter and accompanying motion, again seeking appointed coun
sel. Id., at 58. Halbert stated that his sentence had been
misscored and that he needed the aid of counsel to preserve
the issue before undertaking an appeal. Id., at 58, 61–62.
Halbert also related that he had “required special education
due to learning disabilities,” id., at 61, and was “mentally
impaired,” id., at 62. To prepare his pro se filings, he noted,
1 Michigan provided Halbert with a form titled “Notice of Rights After
Sentencing (After Plea of Guilty/Nolo Contendere) and Request for Ap
pointment of Attorney.” App. 46–50, 53–57. Resembling the advice con
veyed to Halbert by the trial judge, the form described the circumstances
in which counsel must or may be appointed, but did not expressly state
that, absent such circumstances, counsel would not be provided. As re
vised, Michigan’s notice form now states: “You are not entitled to have
a lawyer appointed at public expense to assist you in filing an application
for leave to appeal . . . .” Advice Concerning Right To Appeal After
Plea of Guilty/Nolo Contendere (rev. June 2004), available at http://courts.
michigan.gov/scao/courtforms/appeals/cc265b.pdf (all Internet materials
as visited June 21, 2005, and available in Clerk of Court’s case file).

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he was obliged to rely on the assistance of fellow inmates.
Id., at 61. The trial court denied Halbert’s motion; citing
Bulger, the court stated that Halbert “does not have a
constitutional . . . right to appointment of appellate counsel
to pursue a discretionary appeal.” App. 64.
Again using a form supplied by the State and acting pro
se, Halbert filed an application for leave to appeal. Id., at
66–71. He asserted claims of sentencing error and ineffec
tive assistance of counsel, id., at 68, and sought, inter alia,
remand for appointment of appellate counsel and resentenc
ing, id., at 71. In a standard form order, the Court of Ap
peals denied Halbert’s application “for lack of merit in the
grounds presented.” Id., at 72.
The State Supreme Court, dividing 5 to 2, denied Halbert’s
application for leave to appeal to that court. The dissenting
justices would have provided for the appointment of counsel,
and would have allowed counsel to file a supplemental leave
application prior to the Court of Appeals’ reconsideration of
Halbert’s pleas. Id., at 84.
We granted certiorari, 543 U. S. 1042 (2005), to consider
whether the denial of appointed counsel to Halbert violated
the Fourteenth Amendment. We now vacate the judgment
of the Michigan Court of Appeals.
III
Petitioner Halbert’s case is framed by two prior decisions
of this Court concerning state-funded appellate counsel,
Douglas and Ross. The question before us is essentially one
of classification: With which of those decisions should the in
stant case be aligned? 2 We hold that Douglas provides the
2 The question at hand, all Members of the Court agree, is whether this
case should be bracketed with Douglas v. California, 372 U. S. 353 (1963),
because appointed counsel is sought for initial review before an intermedi
ate appellate court, or with Ross v. Moffitt, 417 U. S. 600 (1974), because
a plea-convicted defendant must file an application for leave to appeal.
See post, at 628 (Thomas, J., dissenting) (“Michigan’s system bears some
similarity to the state systems at issue in both Douglas and Ross.”).

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controlling instruction. Two aspects of the Michigan Court
of Appeals’ process following plea-based convictions lead us
to that conclusion. First, in determining how to dispose of
an application for leave to appeal, Michigan’s intermediate
appellate court looks to the merits of the claims made in the
application. Second, indigent defendants pursuing first-tier
review in the Court of Appeals are generally ill equipped to
represent themselves.
A defendant who pleads guilty or nolo contendere in a
Michigan court does not thereby forfeit all opportunity for
appellate review. Although he relinquishes access to an ap
peal as of right, he is entitled to apply for leave to appeal,
and that entitlement is officially conveyed to him. See
supra, at 612; Mich. Ct. Rule 6.425(E)(2)(a) (2005) (“[T]he
defendant is entitled to file an application for leave to ap
peal.”); see also Advice Concerning Right To Appeal, ¶ 1
(“You are entitled to file an application for leave to appeal
with the Court of Appeals.”), see supra, at 615, n. 1. Of
critical importance, the tribunal to which he addresses his
application, the Michigan Court of Appeals, unlike the Michi
gan Supreme Court, sits as an error-correction instance.3
The Court of Appeals may respond to a leave application
in a number of ways. It “may grant or deny the application;
enter a final decision; grant other relief; request additional
material from the record; or require a certified concise state
ment of proceedings and facts from the court . . . whose order
3 Both the majority and the dissent in People v. Bulger, 462 Mich. 495,
614 N. W. 2d 103 (2000), described the State’s intermediate appellate
court’s function as error correction. Compare id., at 516–518, 614 N. W.
2d, at 112–113 (in the majority’s view, the Court of Appeals could perform
its review function, despite the defendant’s lack of representation, because
plea-convicted defendants have ample aid for preservation of their claims
in the trial court and ineffective assistance of counsel should be readily
apparent to the Court of Appeals from the record), with id., at 543, 614
N. W. 2d, at 125 (Cavanagh, J., dissenting) (“[T]he function of our Court
of Appeals is reviewing the merits and correcting errors made by the
lower courts.”).

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618 HALBERT v. MICHIGAN
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is being appealed. ” Mich. Ct. Rule 7.205(D)(2) (2005).
When the court denies leave using the stock phrase “for lack
of merit in the grounds presented,” its disposition may not
be equivalent to a “final decision” on the merits, i. e., the
disposition may simply signal that the court found the mat
ters asserted unworthy of the expenditure of further judicial
resources. But the court’s response to the leave application
by any of the specified alternatives—including denial of
leave—necessarily entails some evaluation of the merits of
the applicant’s claims.
Michigan urges that review in the Court of Appeals follow
ing a plea-based conviction is as “discretionary” as review in
the Michigan Supreme Court because both require an appli
cation for leave to appeal. See Bulger, 462 Mich., at 506–
508, 519, 614 N. W. 2d, at 108, 113; Brief for Respondent
31–34.4 Therefore, Michigan maintains, Ross is dispositive
of this case. The Court in Ross, however, recognized that
leave-granting determinations by North Carolina’s Supreme
Court turned on considerations other than the commission of
error by a lower court, e. g., the involvement of a matter of
“significant public interest.” See supra, at 611. Michigan’s
Supreme Court, too, sits not to correct errors in individual
cases, but to decide matters of larger public import. See
Mich. Ct. Rule 7.302(B)(2)–(3) (2005) (criteria for granting
leave to appeal to the Michigan Supreme Court include
whether a case presents an “issue [of] significant public in
terest” or “involves legal principles of major significance to
the state’s jurisprudence”); Great Lakes Realty Corp. v. Pe
4 The Bulger opinions nowhere describe the discretion exercised by the
Michigan Court of Appeals as so unconstrained that it may “deny leave
[to appeal] for any reason, or for no reason at all.” Post, at 633 (Thomas,
J., dissenting). Compare Bulger, 462 Mich., at 511, 614 N. W. 2d, at 110
(appeal to intermediate court is discretionary because a defendant must
“obtai[n] leave”); id., at 506–508, 519, 614 N. W. 2d, at 108, 113, with id., at
542–543, 614 N. W. 2d, at 125 (Cavanagh, J., dissenting) (Court of Appeals
may deny leave to appeal where error is not outcome determinative).

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ters, 336 Mich. 325, 328–329, 57 N. W. 2d 901, 903 (1953)
(equating denial of an application for leave to appeal to the
Michigan Supreme Court with denial of a petition for writ of
certiorari in this Court); see also this Court’s Rule 10 (con
siderations guiding decision whether to grant certiorari).
By contrast, the Michigan Court of Appeals, because it is an
error-correction instance, is guided in responding to leave to
appeal applications by the merits of the particular defend
ant’s claims, not by the general importance of the questions
presented.
Whether formally categorized as the decision of an appeal
or the disposal of a leave application, the Court of Appeals’
ruling on a plea-convicted defendant’s claims provides the
first, and likely the only, direct review the defendant’s convic
tion and sentence will receive. Parties like Halbert, how
ever, are disarmed in their endeavor to gain first-tier review.
As the Court in Ross emphasized, a defendant seeking State
Supreme Court review following a first-tier appeal as of
right earlier had the assistance of appellate counsel. The
attorney appointed to serve at the intermediate appellate
court level will have reviewed the trial court record, re
searched the legal issues, and prepared a brief reflecting that
review and research. 417 U. S., at 615. The defendant
seeking second-tier review may also be armed with an opin
ion 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.
The Bulger court concluded that “a pro se defendant seek
ing discretionary review” in the Court of Appeals is ade
quately armed because he “will have the benefit of a tran
script, trial counsel’s framing of the issues in [a] motion to
withdraw, and the trial court’s ruling on the motion.” 462
Mich., at 518, 614 N. W. 2d, at 113; see also Mich. Ct. Rule
6.005(H)(4) (2005) (trial counsel must file “postconviction mo

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620 HALBERT v. MICHIGAN
Opinion of the Court
tions the lawyer deems appropriate, including motions . . .
to withdraw plea, or for resentencing”); post, at 634–635
(Thomas, J., dissenting).5 But we held in Swenson v.
Bosler, 386 U. S. 258 (1967) (per curiam), that comparable
materials prepared by trial counsel are no substitute for an
appellate lawyer’s aid. There, the Missouri court reviewing
an indigent’s post-trial appeal had before it a transcript plus
trial counsel’s “notice of appeal and . . . motion for new trial
which specifically designated the issues which could be con
sidered on direct appeal.” Id., at 259. The absence of coun
sel in these circumstances, Bosler held, “violated [the defend
ant’s] Fourteenth Amendment rights, as defined in Douglas.”
Ibid. Adhering to Douglas, we explained that “[t]he assist
ance of appellate counsel in preparing and submitting a brief
to the appellate court which defines the legal principles
upon which the claims of error are based and which desig
nates and interprets the relevant portions of the [record]
may well be of substantial benefit to the defendant [and]
may not be denied . . . solely because of his indigency.” 386
U. S., at 259. Although Bosler involved a post-trial rather
than postplea appeal, the Court recognized that a transcript
and 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 appli
cant’s entitlement to seek leave to appeal to Michigan’s inter
mediate court may be more formal than real.
Persons in Halbert’s situation are particularly handicapped
as self-representatives. As recounted earlier this Term,
“[a]pproximately 70% of indigent defendants represented by
appointed counsel plead guilty, and 70% of those convicted
5 This assumes that trial counsel will recognize, in a postconviction mo
tion, any issues appropriate for preservation for appellate review. A law
yer may not, however, perceive his own errors or the need for such a
motion. Defense counsel here, for example, whose performance Halbert
alleged to be ineffective, apparently did not assist Halbert in preparing
and filing his motion to withdraw his plea. See supra, at 615–616.

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621 Cite as: 545 U. S. 605 (2005)
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are incarcerated.” Kowalski, 543 U. S., at 140 (Ginsburg,
J., dissenting). “[Sixty-eight percent] of the state prison
populatio[n] did not complete high school, and many lack
the most basic literacy skills.” Ibid. (citation omitted).
“[S]even 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 letter 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.” Ibid. Many, Halbert
among them, have learning disabilities and mental impair
ments. See U. S. Dept. of Justice, Bureau of Justice Statis
tics, A. Beck & L. Maruschak, Mental Health Treatment in
State Prisons, 2000, pp. 3–4 (July 2001), http://www.ojp.usdoj.
gov/ bjs/pub/pdf/mhtsp00.pdf (identifying as mentally ill some
16% of state prisoners and noting that 10% receive psycho
tropic medication).
Navigating the appellate process without a lawyer’s assist
ance is a perilous endeavor for a layperson, and well beyond
the competence of individuals, like Halbert, who have little
education, learning disabilities, and mental impairments.
See Evitts, 469 U. S., at 393 (“[T]he services of a lawyer will
for virtually every layman be necessary to present an appeal
in a form suitable for appellate consideration on the mer
its.”); Gideon v. Wainwright, 372 U. S. 335, 345 (1963) (“Even
the intelligent and educated layman has small and sometimes
no skill in the science of law.” (quoting Powell v. Alabama,
287 U. S. 45, 69 (1932))). Appeals by defendants convicted
on their pleas may involve “myriad and often complicated”
substantive issues, Kowalski, 543 U. S., at 145 (Ginsburg,
J., dissenting), and may be “no less complex than other ap
peals,” id., at 141 (same). One who pleads guilty or nolo
contendere may still raise on appeal
“constitutional defects that are irrelevant to his factual
guilt, double jeopardy claims requiring no further fac
tual record, jurisdictional defects, challenges to the suf
ficiency of the evidence at the preliminary examination,

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622 HALBERT v. MICHIGAN
Opinion of the Court
preserved entrapment claims, mental competency
claims, factual basis claims, claims that the state had no
right to proceed in the first place, including claims that
a defendant was charged under an inapplicable statute,
and claims of ineffective assistance of counsel.” Ibid.
(quoting Bulger, 462 Mich., at 561, 614 N. W. 2d, at 133–
134 (Cavanagh, J., dissenting); citations omitted).
Michigan’s very procedures for seeking leave to appeal
after sentencing on a plea, moreover, may intimidate the un
counseled. See Kowalski, 543 U. S., at 141–142 (Ginsburg,
J., dissenting). Michigan Ct. Rule 7.205(A) (2005) requires
the applicant to file for leave to appeal within 21 days after
the trial court’s entry of judgment. “The defendant must
submit five copies of the application ‘stating the date and
nature of the judgment or order appealed from; concisely
reciting the appellant’s allegations of error and the relief
sought; [and] setting forth a concise argument . . . in sup
port of the appellant’s position on each issue.’ ” Kowalski,
543 U. S., at 141 (Ginsburg, J., dissenting) (quoting Rule
7.205(B)(1)). Michigan does provide “a three-page form ap
plication accompanied by two pages of instructions for de
fendants seeking leave to appeal after sentencing on a . . .
plea. But th[e] form is unlikely to provide adequate aid to
an indigent and poorly educated defendant.” Ibid. It di
rects the defendant to provide information such as “charge
code(s), MCL citation/PACC Code,” state the issues and
facts relevant to the appeal, and “ ‘state the law that sup
ports your position and explain how the law applies to the
facts of your case.’ ” Id., at 141–142 (quoting Application for
Leave To Appeal After Sentencing on Plea of Guilty or Nolo
Contendere (rev. Oct. 2003), http://courts.michigan.gov/scao/
courtforms/appeals/cc405.pdf; some internal quotation marks
omitted). “This last task would not be onerous for an appli
cant familiar with law school examinations, but it is a tall
order for a defendant of marginal literacy.” Kowalski, 543
U. S., at 142 (Ginsburg, J., dissenting).

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While the State has a legitimate interest in reducing the
workload of its judiciary, providing indigents with appellate
counsel will yield applications easier to comprehend.6 Mich
igan’s Court of Appeals would still have recourse to sum
mary 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. See Anders v. California, 386 U. S. 738, 744
(1967) (“[I]f counsel finds [the] case to be wholly frivolous,
after a conscientious examination of it, he should so advise
the court and request permission to withdraw,” filing “a brief
referring to anything in the record that might arguably sup
port the appeal.”); Tr. of Oral Arg. 27 (“[I]n a significant
percentage of the cases . . . [,] after reviewing the case, the
appellate counsel then concludes that there is no merit . . . ,
at which point then either a motion to withdraw may be filed
or . . . the Michigan equivalen[t] of an Anders brief.”).
Michigan contends that, even if Halbert had a constitution
ally guaranteed right to appointed counsel for first-level ap
pellate review, he waived that right by entering a plea of
nolo contendere. We disagree. At the time he entered his
plea, Halbert, in common with other defendants convicted on
their pleas, had no recognized right to appointed appellate
counsel he could elect to forgo.7 Moreover, as earlier ob
6 “No one questions,” the Bulger court stated, “that the appointment of
appellate counsel at state expense would be more efficient and helpful not
only to defendants, but also to the appellate courts.” 462 Mich., at 520,
614 N. W. 2d, at 114.
7 Assuming, as Justice Thomas suggests, that whether Michigan law
conferred on Halbert a postplea right to appointed appellate counsel is
irrelevant to whether Halbert waived a federal constitutional right to such
counsel, post, at 639–640, the remainder of the dissent’s argument slips
from our grasp, see post, at 640–641. No conditional waiver—“on[e] in
which a defendant agrees that, if he has . . . a right, he waives it,” post, at
640—is at issue here. Further, nothing in Halbert’s plea colloquy indi
cates that he waived an “unsettled,” but assumed, right to the assistance
of appointed appellate counsel, postplea. See post, at 640–641.

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624 HALBERT v. MICHIGAN
Thomas, J., dissenting
served, the trial court did not tell Halbert, simply and di
rectly, that in his case, there would be no access to appointed
counsel. See supra, at 614–615; cf. Iowa v. Tovar, 541 U. S.
77, 81 (2004) (“Waiver of the right to counsel, as of consti
tutional rights in the criminal process generally, must be
a ‘knowing, intelligent ac[t] done with sufficient awareness
of the relevant circumstances.’ ” (quoting Brady v. United
States, 397 U. S. 742, 748 (1970))).8
* * *
For the reasons stated, we vacate the judgment of the
Michigan Court of Appeals and remand the case for further
proceedings not inconsistent with this opinion.
It is so ordered.
Justice Thomas, with whom Justice Scalia joins, and
with whom The Chief Justice joins as to all but Part III–
B–3, dissenting.
Petitioner Antonio Halbert pleaded no contest to charges
that he sexually assaulted his stepdaughter and another
8 We are unpersuaded by the suggestion that, because a defendant may
be able to waive his right to appeal entirely, Michigan can consequently
exact from him a waiver of the right to government-funded appellate coun
sel. See Tr. of Oral Arg. 14. Many legal rights are “presumptively waiv
able,” post, at 637 (Thomas, J., dissenting), and if Michigan were to require
defendants to waive all forms of appeal as a condition of entering a plea,
that condition would operate against moneyed and impoverished defend
ants alike. A required waiver of the right to appointed counsel’s assist
ance when applying for leave to appeal to the Michigan Court of Appeals,
however, would accomplish the very result worked by Mich. Comp. Laws
Ann. § 770.3a (West 2000): It would leave indigents without access to coun
sel in that narrow range of circumstances in which, our decisions hold, the
State must affirmatively ensure that poor defendants receive the legal
assistance necessary to provide meaningful access to the judicial system.
See Douglas, 372 U. S., at 357–358; M. L. B. v. S. L. J., 519 U. S. 102,
110–113 (1996); cf. Griffin v. Illinois, 351 U. S. 12, 23 (1956) (Frankfurter,
J., concurring in judgment) (ordinarily, “a State need not equalize economic
conditions” between criminal defendants of lesser and greater wealth).

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Thomas, J., dissenting
young girl. Michigan law did not provide Halbert—as a de
fendant convicted by a plea of guilty or no contest—an ap
pointed attorney to help him prepare an application for leave
to appeal to the Michigan Court of Appeals. The Court
holds Michigan’s law unconstitutional as applied to Halbert.
It fails, however, to ground its analysis in any particular pro
vision of the Constitution or in this Court’s precedents. It
also ignores that, even if there is a right to counsel in the
circumstances at issue, the right is waivable and was validly
waived here. I respectfully dissent.
I
To understand why the Court’s holding is an unwarranted
extension of our precedents, it is necessary first to under
stand the limits that Michigan places on the provision of
court-appointed counsel for defendants who plead guilty or
no contest. Before 1994, Michigan afforded all criminal de
fendants the right to appeal their convictions to the Michigan
Court of Appeals. By the early 1990’s, however, the Michi
gan Court of Appeals had a backlog of thousands of cases
awaiting decision, nearly a third of which were appeals by
defendants who had pleaded guilty or no contest. People v.
Bulger, 462 Mich. 495, 504, 614 N. W. 2d 103, 107 (2000). To
reduce this backlog, Michigan voters amended the Michigan
Constitution in 1994 to provide that “[i]n every criminal
prosecution, the accused shall . . . have an appeal as a matter
of right, except [that] an appeal by an accused who pleads
guilty or nolo contendere shall be by leave of the court.”
Mich. Const., Art. 1, § 20; Bulger, supra, at 504, 614 N. W. 2d,
at 107. This constitutional amendment created a two-track
system for Michigan defendants: The Michigan Court of Ap
peals must hear the appeals of those who dispute their guilt,
while it may elect to hear the appeals of those who concede
or do not contest their guilt of the substantive crime.
In 1999, the Michigan Legislature enacted the statute at
issue here. It provides that, in general, a “defendant who

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626 HALBERT v. MICHIGAN
Thomas, J., dissenting
pleads guilty, guilty but mentally ill, or nolo contendere shall
not have appellate counsel appointed for review of the de
fendant’s conviction or sentence.” Mich. Comp. Laws Ann.
§ 770.3a(1) (West 2000). Defendants who plead guilty or no
contest do not, however, invariably lose the right to counsel
on appeal; the statute contains exceptions to the general
rule. The trial court must appoint appellate counsel for
plea-convicted defendants if the State seeks leave to appeal,
the defendant’s sentence exceeds the upper limit of the appli
cable minimum guidelines range, or the defendant seeks
leave to appeal a conditional plea. § 770.3a(2). Further, the
trial court may appoint appellate counsel for plea-convicted
defendants who seek leave to appeal certain sentencing er
rors. § 770.3a(3). Finally, if the Court of Appeals grants
leave to appeal, “the case proceeds as an appeal of right,”
Mich. Ct. Rule 7.205(D)(3) (2005), and the plea-convicted de
fendant is entitled to appointed counsel, Mich. Comp. Laws
Ann. § 770.3a(2)(c). Thus, plea-convicted defendants lack ap
pellate counsel only in certain types of cases, and only then
when they are seeking leave to appeal.
II
The majority nevertheless holds that Michigan’s system is
constitutionally inadequate. It finds that all plea-convicted
indigent defendants have the right to appellate counsel when
seeking leave to appeal. The majority does not say where
in the Constitution that right is located—the Due Process
Clause, the Equal Protection Clause, or some purported con
fluence of the two. Ante, at 610–611. Nor does the major
ity attempt to anchor its holding in the history of those
Clauses. M. L. B. v. S. L. J., 519 U. S. 102, 131, 133, 138
(1996) (Thomas, J., dissenting). Nor does the majority even
attempt to ground its holding in the entirety of this Court’s
jurisprudence, which does not require paid appellate assist
ance for indigent criminal defendants. Id., at 131–138. The

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Thomas, J., dissenting
majority ignores the bulk of that jurisprudence and leaves
those arguments unanswered.
Instead, the majority pins its hopes on a single case: Doug
las v. California, 372 U. S. 353 (1963). Douglas, however,
does not support extending the right to counsel to any form
of discretionary review, as Ross v. Moffitt, 417 U. S. 600
(1974), and later cases make clear. Moreover, Michigan has
not engaged in the sort of invidious discrimination against
indigent defendants that Douglas condemns. Michigan has
done no more than recognize the undeniable difference be
tween defendants who plead guilty and those who maintain
their innocence, in an attempt to divert resources from
largely frivolous appeals to more meritorious ones. The ma
jority substitutes its own policy preference for that of Michi
gan voters, and it does so based on an untenable reading
of Douglas.
A
In Douglas, California granted an initial appeal as of right
to all convicted criminal defendants. 372 U. S., at 356.
However, the California Court of Appeal appointed counsel
for indigent defendants only after determining whether
counsel would be useful to the defendant or the court. Ibid.
Thus the California appellate court was “forced to prejudge
the merits” of indigent defendants’ appeals, while it judged
the merits of other defendants’ appeals only after briefing
and oral argument. Ibid.
In previous cases, this Court had considered state-imposed
conditions like transcript and filing fees that prevented indi
gent criminal defendants from obtaining any appellate re
view. Ross, supra, at 606–607 (discussing Griffin v. Illinois,
351 U. S. 12 (1956), and its progeny). By contrast, in Doug
las, California provided appellate review to all criminal de
fendants, but it did not provide a state subsidy for indigent
defendants whose claims appeared unlikely to benefit from
counsel’s assistance. This Court nevertheless held that
when States provide a first appeal as of right, they must

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628 HALBERT v. MICHIGAN
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supply indigent defendants with counsel. Ross, supra, at
607. In Ross, however, this Court declined to extend Doug
las’ right to counsel beyond initial appeals as of right.
States need not appoint counsel for indigent defendants who
seek discretionary review in a State’s highest court or this
Court. Ross, supra, at 616–618.
Michigan’s system bears some similarity to the state sys
tems at issue in both Douglas and Ross. Like the defendant
in Douglas, Halbert requests appointed counsel for an initial
appeal before an intermediate appellate court. But like the
defendant in Ross, Halbert requests appointed counsel for
an appeal that is discretionary, not as of right. Crucially,
however, Douglas noted that its decision extended only to
initial appeals as of right—and later cases have repeatedly
reaffirmed that understanding.1 This Court has never re
quired States to appoint counsel for discretionary review.
Ross, supra, at 610; Murray v. Giarratano, 492 U. S. 1, 10–11
(1989); see also Pennsylvania v. Finley, 481 U. S. 551, 555
(1987). And an appeal permitted only “by leave of the
court,” Mich. Const., Art. 1, § 20, is discretionary—as the
Michigan Supreme Court has recognized, Bulger, 462 Mich.,
at 519, 614 N. W. 2d, at 113; id., at 542–543, 614 N. W. 2d, at
125 (Cavanagh, J., dissenting). Neither Douglas nor any
other decision of this Court warrants extending the right to
counsel to discretionary review, even on a defendant’s ini
tial appeal.
1 Douglas, 372 U. S., at 357; Ross, 417 U. S., at 608 (“[Douglas] extended
only to initial appeals as of right”); Evitts v. Lucey, 469 U. S. 387, 394
(1985) (Douglas “is limited to the first appeal as of right”); Pennsylvania
v. Finley, 481 U. S. 551, 555 (1987) (“[T]he right to appointed counsel ex
tends to the first appeal of right, and no further”); Coleman v. Thompson,
501 U. S. 722, 755 (1991) (“[Douglas] establish[es] that an indigent criminal
defendant has a right to appointed counsel in his first appeal as of right in
state court”); see also Wainwright v. Torna, 455 U. S. 586, 587 (1982) (per
curiam) (“[Ross] held that a criminal defendant does not have a constitu
tional right to counsel to pursue discretionary state appeals or applications
for review in this Court”).

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Thomas, J., dissenting
Just as important, the rationale of Douglas does not sup
port extending the right to counsel to this particular form
of discretionary review. Admittedly, the precise rationale
for the Griffin/Douglas line of cases has never been made
explicit. Ross, supra, at 608–609. Those cases, however,
have a common theme. States may not impose financial bar
riers that preclude indigent defendants from securing appel
late review altogether. Griffin, 351 U. S., at 17–18 (plurality
opinion); id., at 22 (Frankfurter, J., concurring in judgment);
Burns v. Ohio, 360 U. S. 252, 258 (1959); Smith v. Bennett,
365 U. S. 708, 713–714 (1961). Nor may States create “ ‘un
reasoned distinctions’ ” among defendants, M. L. B., 519
U. S., at 111 (quoting Rinaldi v. Yeager, 384 U. S. 305, 310
(1966)); Douglas, supra, at 356; Griffin, supra, at 22–23
(Frankfurter, J., concurring in judgment), that “arbitrarily cut
off appeal rights for indigents while leaving open avenues of
appeals for more affluent persons,” Ross, supra, at 607.
Far from being an “arbitrary” or “unreasoned” distinction,
Michigan’s differentiation between defendants convicted at
trial and defendants convicted by plea is sensible. First and
perhaps foremost, the danger of wrongful convictions is less
significant than in Douglas. In Douglas, California prelimi
narily denied counsel to all indigent defendants, regardless
of whether they maintained their innocence at trial or con
ceded their guilt by plea. Here, Michigan preliminarily de
nies paid counsel only to indigent defendants who admit or
do not contest their guilt. And because a defendant who
pleads guilty “may not thereafter raise independent claims
relating to the deprivation of constitutional rights that oc
curred prior to the entry of the guilty plea,” Tollett v. Hen
derson, 411 U. S. 258, 267 (1973), the potential issues that can
be raised on appeal are more limited, Bulger, 462 Mich., at
517, and n. 7, 614 N. W. 2d, at 112–113, and n. 7. Further,
as the Michigan Supreme Court has explained:
“Plea proceedings are also shorter, simpler, and more
routine than trials; the record most often consists of the

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630 HALBERT v. MICHIGAN
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‘factual basis’ for the plea that is provided to the trial
court. 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.” Id., at 517, 614 N. W. 2d, at 112.
When a defendant pleads in open court, there is less need
for counsel to develop the record and refine claims to present
to an appellate court. These are all “ ‘[r]easoned distinc
tions’ ” between defendants convicted by trial and those con
victed by their own plea. M. L. B., supra, at 111 (quoting
Rinaldi, supra, at 310).
The brief history of Michigan’s system confirms this.
When Michigan voters amended the State Constitution to
establish the current system, roughly 13,000 civil and crimi
nal appeals per year clogged the Michigan Court of Appeals’
docket. Of those, nearly a third were appeals by criminal
defendants who had pleaded guilty or no contest. Even
though at the time plea-convicted defendants were appointed
paid appellate counsel, few of these defendants were granted
relief on appeal. Simply put, Michigan’s bar and bench were
devoting a substantial portion of their scarce resources to
thousands of cases with little practical effect. Reallocating
resources was not “invidious discrimination” against crimi
nal defendants, indigent or otherwise. Douglas, 372 U. S.,
at 356 (internal quotation marks omitted). It was an at
tempt to ensure “that frivolous appeals [were] not subsidized
and public moneys not needlessly spent.” Griffin, supra, at
24 (Frankfurter, J., concurring in judgment).
Today’s decision will therefore do no favors for indigent
defendants in Michigan—at least, indigent defendants with
nonfrivolous claims. While defendants who admit their
guilt will receive more attention, defendants who maintain
their innocence will receive less. Even some defendants
who plead guilty will feel the pinch, because plea-convicted
defendants are entitled to counsel in preparing their leave
applications if, for example, they appeal from conditional

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631 Cite as: 545 U. S. 605 (2005)
Thomas, J., dissenting
pleas, Mich. Comp. Laws Ann. § 770.3a(2)(d) (West 2005), or
their sentences exceed the applicable guidelines ranges,
§ 770.3a(2)(b). And any plea-convicted defendant granted
leave to appea l is entitled to appoi nted counsel.
§ 770.3a(2)(c). Holding Michigan’s resources constant (since
we have no control over the State’s bar or budget), the ma
jority’s policy choice to redistribute the State’s limited re
sources only harms those most likely to have worthwhile
claims—to say nothing of “the cost of enabling courts and
prosecutors to respond to the ‘over-lawyering’ of minor
cases.” Alabama v. Shelton, 535 U. S. 654, 681 (2002)
(Scalia, J., dissenting); cf. Rompilla v. Beard, ante, at 403
(Kennedy, J., dissenting). Then, too, Michigan is under
no constitutional obligation to provide appeals for plea
convicted defendants. Ante, at 610 (citing McKane v. Dur
ston, 153 U. S. 684 (1894)). Michigan may decline to provide
an appellate process altogether (since the Court’s ruling in
creases the cost of having a system of appellate review).
Surely plea-convicted defendants would prefer appeals with
limited access to counsel than no appeals at all.
B
The majority does not attempt to demonstrate that Michi
gan’s system is the sort of “unreasoned” discrimination
against indigent defendants Douglas prohibits. Instead, the
majority says that this case is earmarked by two considera
tions that were also key to this Court’s decision in Douglas:
First, when a plea-convicted defendant seeks leave to appeal,
the Michigan Court of Appeals adjudicates the leave applica
tion with reference to the merits. Ante, at 617. Second,
the plea-convicted defendant who seeks leave to appeal is
“generally ill equipped to represent [himself].” Ibid. Nei
ther of these arguments is correct.
1
The majority reasons that in adjudicating an application
for leave to appeal, the Michigan Court of Appeals “is

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632 HALBERT v. MICHIGAN
Thomas, J., dissenting
guided . . . by the merits of the particular defendant’s
claims.” Ante, at 619. The distinction that Douglas drew,
however, was not between appellate systems that involve
“some evaluation of the merits of the applicant’s claims” and
those that do not, ante, at 618, but instead between dis
cretionary and mandatory review. Supra, at 627–630. Of
course the California intermediate courts in Douglas evalu
ated cases on their merits: These courts were hearing ap
peals as of right.
The Michigan Court of Appeals probably does consider
“the merits of the applicant’s claims” in exercising its discre
tion; so do other courts of discretionary review, including this
Court. For instance, this Court would be unlikely to grant
certiorari in a case to announce a rule that could not alter
the case’s disposition, or to correct an error that had not
affected the proceedings below. This Court often considers
whether errors are worth correcting in both plenary and
summary dispositions. None of this converts discretion
ary, error-noticing review into mandatory, error-correcting
review.
Likewise, the Michigan Court of Appeals is not required
to hear particular cases or correct particular errors. It may
elect to hear cases when it finds the trial court’s disposition
questionable or dubious. Or it may elect to hear cases when
it finds the trial court’s disposition important or interesting.
For all we know, it may (and probably does) consider both.
Regardless, the Court of Appeals’ decision to grant review
remains “discretionary,” because it does not depend on
“whether there has been ‘a correct adjudication of guilt’ in
every individual case.” Ross, 417 U. S., at 615. Like other
courts of discretionary review, the Court of Appeals may opt
to correct errors, ante, at 617–619, and n. 3—but it is not
compelled to do so.
The majority appears to dispute that review before the
Michigan Court of Appeals is truly discretionary, ante, at
618–619, and n. 4, but it provides no support for its spec
ulation. Unlike the California Court of Appeal in Douglas,

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the Michigan Court of Appeals has discretion in deciding
whether to grant leave applications. See Bulger, 462 Mich.,
at 519, 614 N. W. 2d, at 113 (describing the issue as “whether
a defendant is entitled under the federal constitution to ap
pointed counsel in a first discretionary appeal from a plea
based conviction” (emphasis in original)); id., at 542–543, 614
N. W. 2d, at 125 (Cavanagh, J., dissenting) (“Nothing in our
court rules or statute preclude the Court of Appeals from
denying leave even though it may believe that the trial
court’s decision was incorrect”). So far as we can tell, the
Michigan Court of Appeals’ decision to grant or deny a leave
application is not constrained by any state constitutional pro
vision, statute, or court rule. The Michigan Court of Ap
peals may deny leave for any reason, or for no reason at all.
The majority’s holding suggests that Michigan’s system
would pass constitutional muster if the Court of Appeals re
cited “lack of importance in the grounds presented” as its
ground for denying leave, ante, at 618–619, or if its decisional
criteria were set forth in a statute, judicial decision, or court
rule, ibid. Yet the relevant inquiry under Douglas and Ross
is whether the Court of Appeals is obliged to review the
case—not whether the Court of Appeals must or does offer
a particular ground for declining review.
2
The majority also asserts that, without counsel, plea
convicted defendants who seek leave to appeal are “generally
ill equipped to represent themselves.” Ante, at 617. This
overgeneralizes Douglas’ rationale. The Douglas Court
was concerned with the “barren record” that would follow a
defendant on appeal. 372 U. S., at 356. For “where the rec
ord [was] unclear or the errors [were] hidden,” the appellate
court would have difficulty detecting errors without the as
sistance of counsel. Id., at 358.
This is in part why this Court in Ross did not extend the
right to counsel to discretionary review before the North

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634 HALBERT v. MICHIGAN
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Carolina Supreme Court. Before that court, a defendant
applying for leave had “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.” 417 U. S.,
at 615. Coupled with whatever the defendant might submit
on his own, these materials provided the State Supreme
Court “with an adequate basis for its decision to grant or
deny review.” Ibid.
The majority does not argue that indigent plea-convicted
defendants who file leave applications do so with a “barren
record,” Douglas, supra, at 356, or that the Michigan Court
of Appeals lacks an “adequate basis” for reviewing their
leave applications, Ross, supra, at 615. The Michigan Su
preme Court put it best:
“[Michigan’s] court rules require trial counsel to assist
the defendant in organizing and presenting to the trial
court any potential appellate issues that warrant pres
ervation. Accordingly, a pro se defendant seeking dis
cretionary review will have the benefit of a transcript,
trial counsel’s framing of the issues in the motion to
withdraw, and the trial court’s ruling on the motion.”
Bulger, supra, at 518, 614 N. W. 2d, at 113; see also Mich.
Ct. Rule 6.005(H)(4) (2005).
As in Ross, these materials aid both the plea-convicted de
fendant and the Michigan Court of Appeals in identifying
claims appropriate for plenary consideration. A plea
convicted defendant does not face a record unreviewed by
counsel, and he does not lack any reasoned treatment of his
claims. And, again, plea proceedings tend to be more trans
parent than trials, supra, at 629–630; “less danger exists in
plea cases that the record will be so unclear, or the errors so
hidden,” Bulger, supra, at 517, 614 N. W. 2d, at 112, that the
Michigan Court of Appeals will be unable to identify issues
that deserve further examination on appeal. After all, the

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Michigan Court of Appeals need know only enough to decide
whether to grant further review. Should it elect to do so,
Michigan law requires the appointment of counsel to aid in
the appeal. Mich. Comp. Laws Ann. § 770.3a(2)(c) (2005).
The majority’s unwillingness to confront the distinctions
between Michigan’s system and the California system at
issue in Douglas is made clear by its reliance on Swenson v.
Bosler, 386 U. S. 258 (1967) (per curiam). Swenson consid
ered whether indigent defendants convicted at trial have a
right to appointed counsel during their initial appeal as of
right, even if the State provides indigent defendants with
a trial transcript and a motion for a new trial prepared by
trial counsel. Id., at 258–259. But Douglas had already
answered that question, as this Court summarily declared:
“[Appointed counsel] may not be denied to a criminal defend
ant, solely because of his indigency, on the only appeal which
the State affords him as a matter of right.” 386 U. S., at
259 (emphasis added). Of course, Michigan’s entire argu
ment is that there is a “[r]easoned distinctio[n]” between
defendants convicted following trials and pleas, as there is
between appeals as of right and discretionary review.
M. L. B., 519 U. S., at 111 (internal quotation marks omitted);
Brief for Respondent 28. This Court’s brief, per curiam
opinion in Swenson did not consider, much less address,
these arguments.
Lacking support in this Court’s cases, the majority effects
a not-so-subtle shift from whether the record is adequate to
enable discretionary review to whether plea-convicted de
fendants are generally able to “[n]aviga[te] the appellate
process without a lawyer’s assistance.” Ante, at 621. This
rationale lacks any stopping point. Pro se defendants may
have difficulty navigating discretionary direct appeals and
collateral proceedings, but this Court has never extended the
right to counsel beyond first appeals as of right. Supra, at
627–628, and n. 1. The majority does not demonstrate that
pro se defendants have any more difficulty filing leave appli

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636 HALBERT v. MICHIGAN
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cations before the Michigan courts than, say, filing petitions
for certiorari before this Court.
In fact, this Court receives thousands of pro se petitions
every year that list “the date and nature of the judgment
or order appealed from,” Mich. Ct. Rule 7.205(B)(1) (2005);
“reci[te] the appellant’s allegations of error and the relief
sought,” ibid.; and “se[t] forth a concise argument . . . in
support of the appellant’s position on each issue,” ibid. See
this Court’s Rule 14 (setting forth analogous requirements
for petitions for writs of certiorari). Michigan actually pro
vides a three-page form application accompanied by two
pages of instructions for defendants seeking leave to appeal
after sentencing on a plea. It counsels defendants to “state
the issues and facts relevant to the appeal,” and “state the
law that supports your position and explain how the law ap
plies to the facts of your case.” Ante, at 622 (internal quota
tion marks omitted). The majority gives no clue as to how
Michigan could make its procedures for seeking leave to ap
peal less intimidating to the uncounseled. Ibid. Regard
less, Michigan’s procedures are more than sufficient to enable
discretionary review.
The majority then attempts to soften the blow by saying
that it is doing the State a favor, because “providing indi
gents with appellate counsel will yield applications easier to
comprehend.” Ante, at 623. Even assuming the majori
ty’s paternalism is accurate, there is no evidence that the
Michigan courts currently have difficulty adjudicating leave
applications. At the least, the majority leaves unexplained
why the Michigan courts have greater difficulty than do state
and federal courts considering discretionary direct appeals
and collateral proceedings. And even assuming the Michi
gan courts have special difficulty, it is unlikely any marginal
gains will offset the harms wrought by the majority’s pref
erence for redistributing resources to a set of generally
less meritorious claims. Whether or not one agrees with

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the policy choice made by Michigan voters, it is perfectly
constitutional.
III
Even assuming that there is a right to appointed appellate
counsel in these circumstances, the right, like the vast major
ity of other procedural rights, is waivable, despite the major
ity’s dictum to the contrary. Moreover, Michigan’s statutory
prohibition on appointed appellate counsel does not prevent
defendants from waiving any constitutional right to such
counsel. And, in this case, Halbert’s waiver was knowing
and intelligent.
A
Legal rights, even constitutional ones, are presumptively
waivable. United States v. Mezzanatto, 513 U. S. 196, 200–
201 (1995); see also New York v. Hill, 528 U. S. 110, 114
(2000); Peretz v. United States, 501 U. S. 923, 936 (1991) (“The
most basic rights of criminal defendants are . . . subject to
waiver”). The presumption of waivability holds true for the
right to counsel. This Court has held repeatedly that a de
fendant may waive that right, both at trial and at the entry
of a guilty plea, so long as the waiver is knowing and intelli
gent. Iowa v. Tovar, 541 U. S. 77, 88 (2004); Faretta v. Cali
fornia, 422 U. S. 806, 835 (1975); Adams v. United States ex
rel. McCann, 317 U. S. 269, 279 (1942); Johnson v. Zerbst, 304
U. S. 458, 464–465 (1938). Michigan seeks a waiver no more
extensive than those this Court has already sanctioned at
other stages of a criminal proceeding: It asks defendants con
victed by plea to waive the right to appointed counsel on
appeal.
There may be some nonwaivable rights: ones “so funda
mental to the reliability of the factfinding process that they
may never be waived without irreparably discrediting the
federal courts.” Mezzanatto, supra, at 204 (internal quota
tion marks and brackets omitted). The right to appointed
counsel on discretionary appeal from a guilty plea, however,

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638 HALBERT v. MICHIGAN
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is not one of them. Even assuming that the assistance of
appellate counsel enhances the reliability of the factfinding
process by correcting errors in that process, it cannot possi
bly be so fundamental to the process that its absence “irrepa
rably discredit[s]” the federal courts, particularly since the
Constitution guarantees no right to an appeal at all, e. g.,
M. L. B., 519 U. S., at 110, 120. Furthermore, as I have ex
plained, the record of a plea proceeding is fully adequate to
enable discretionary review and, in turn, to permit the cor
rection of errors in the factfinding process when necessary.
Supra, at 634 (explaining that a plea-convicted defendant
does not face a record unreviewed by counsel, and does not
lack any reasoned treatment of his claims). And, finally,
even if the reliability of the appellate process rather than the
trial process is the relevant consideration here, the assist
ance of appellate counsel is not so fundamental to the ap
pellate process that its absence deprives that process of
meaning. Supra, at 629–630, 634–637. Cf. Hill, supra, at
116–117 (a constitutional protection may be waived even if it
benefits society as well as criminal defendants).
Petitioner emphasizes the difficulty of the choice to which
Michigan’s statute puts criminal defendants: proceed to trial
and guarantee the appointment of appellate counsel, or plead
guilty and forgo that benefit. But this Court has repeatedly
recognized that difficult choices are a necessary byproduct
of the criminal justice system, and of plea bargaining in par
ticular. See, e. g., Mezzanatto, supra, at 210; Brady v.
United States, 397 U. S. 742, 750 (1970). Michigan’s waiver
requires a choice no more demanding than others criminal
defendants regularly face.
B
The majority maintains, first, that Halbert could not waive
the right to appointed appellate counsel because Michigan
law afforded him no such right to waive; second, in dictum,
that the right cannot be waived; and, third, that even if the

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right can be waived, Halbert did not knowingly and intelli
gently waive it here. The Court is wrong in each respect.
1
The majority claims that “[a]t the time he entered his plea,
Halbert, in common with other defendants convicted on their
pleas, had no recognized right to appointed appellate counsel
he could elect to forgo.” Ante, at 623. This assertion ap
parently refers to the Michigan statute, Mich. Comp. Laws
Ann. § 770.3a (West 2000). At the time of Halbert’s plea, the
statute provided that, if a defendant was convicted by plea,
he generally could not receive appointed appellate counsel.
The majority’s reasoning is flawed for at least three reasons.
First, the statement that “Halbert, in common with other
defendants convicted on their pleas, had no recognized right
to appointed appellate counsel,” ante, at 623, is either incor
rect or irrelevant. If we view (as we must) the waiver deci
sion from the perspective of Halbert and other defendants
before entering a plea, the statement is wrong as a matter
of Michigan law. The Michigan Court Rules applicable at
the time of Halbert’s plea explicitly provided that he was
entitled to appointed appellate counsel if convicted following
a trial. Mich. Ct. Rule 6.425(F)(1)(b) (Lexis 2001) (“In a case
involving a conviction following a trial, if the defendant is
indigent, the court must enter an order appointing a lawyer
if the request is filed within 42 days after sentencing or
within the time for filing an appeal of right”). Michigan law
thus gave Halbert, before entering a plea, the choice either
to proceed to trial and guarantee himself appointed appellate
counsel, or to plead guilty or no contest and forgo appointed
appellate counsel in most circumstances.
Alternatively, by stating that “Halbert, in common with
other defendants convicted on their pleas, had no recognized
right to appointed appellate counsel,” ante, at 623, the major
ity might mean that Michigan law afforded Halbert no right
to appointed appellate counsel following a plea-based convic

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640 HALBERT v. MICHIGAN
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tion. If so, the statement is true but irrelevant. Of course
Michigan law did not afford Halbert a right to appointed
counsel once he pleaded no contest to the charged crimes.
But the question is whether, by pleading no contest with
knowledge of the condition (no paid counsel on appeal), Hal
bert accepted the condition and thereby waived his right to
paid counsel on appeal. In other words, the question is
whether Halbert had no right to counsel following his plea,
because he had elected to forgo the right by pleading.
Second, even if the majority were correct about Michigan
law, that is beside the point. At issue here is whether Hal
bert waived any federal constitutional right to appointed ap
pellate counsel he might have enjoyed. Whether Michigan
law provides for such counsel says nothing about whether a
defendant possesses (and hence can waive) a federal constitu
tional right to that effect. That Michigan, as a matter of
state law, prohibited Halbert from receiving appointed ap
pellate counsel if he pleaded guilty or no contest is irrelevant
to whether Halbert had (and could waive) an independent
federal constitutional right to such counsel.
Third, the majority implies that if the existence of a right
to paid appellate counsel had been something more than
“no[t] recognized” at the time of Halbert’s plea, then the
right would have been waivable, ibid. What this cryptic
statement means is unclear. But it cannot possibly mean
that only rights that have been explicitly and uniformly rec
ognized by statute or case law may be waived. If that is
what the statement means, then the majority has outlawed
all conditional waivers (ones in which a defendant agrees
that, if he has such a right, he waives it).
I take it instead that the reference to rights that are some
thing more than “no[t] recognized,” and hence waivable,
ibid., means not just rights that are uniformly recognized,
but also rights whose existence is unsettled. If this under
standing of the majority’s rule is correct, then the rule does
not justify its claim that the constitutional right at issue was

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641 Cite as: 545 U. S. 605 (2005)
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wholly unrecognized. In fact, the existence of such a right
was unsettled when Halbert entered his plea. By that date,
November 7, 2001, the Michigan Supreme Court had issued
Bulger, 462 Mich. 495, 614 N. W. 2d 103, sustaining over a
vigorous dissent the practice of denying the appointment of
appellate counsel on application for leave to appeal a plea
based conviction; and a Federal District Court had enjoined
Michigan state judges from denying the appointment of ap
pellate counsel to indigents pursuant to the state statute, on
the ground that the statute was unconstitutional, Tesmer v.
Kowalski, 114 F. Supp. 2d 622, 625–629 (ED Mich. 2000).
The majority appears to focus on the fact that Michigan law
did not afford defendants this right, but, again, state law is
irrelevant to whether they possessed a federal constitutional
right. The existence of that right was unsettled at the time
of Halbert’s plea; hence, on what I take to be the majority’s
own terms, the right should have been waivable.2
The majority attempts to deflect this criticism by saying
that “nothing in Halbert’s plea colloquy indicates that he
waived an ‘unsettled’ . . . but assumed right to the assistance
of appointed appellate counsel, postplea.” Ante, at 623, n. 7.
But any arguable inadequacy in the plea colloquy is a sepa
rate issue from, and is irrelevant to, the question at hand:
whether the right was recognized, and hence waivable, by
Halbert (or any other defendant deciding how to plead), irre
spective of the content of the plea colloquy.
2 Moreover, the majority’s failure to make clear which sources of law are
to be considered in deciding whether a right is “no[t] recognized,” ante, at
623, and hence nonwaivable, is bound to wreak havoc. For instance, sup
pose that a defendant waived the right to appeal his sentence after the
regional Court of Appeals had held that the principle of Blakely v. Wash
ington, 542 U. S. 296 (2004), did not apply to the United States Sentencing
Guidelines, but before this Court held the contrary in United States v.
Booker, 543 U. S. 220 (2005). The defendant could claim that, in his cir
cuit, the Sixth Amendment right against the application of the Guidelines
was “no[t] recognized,” and hence that the right was nonwaivable.

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642 HALBERT v. MICHIGAN
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2
The majority compounds its error by expressing doubt
in dictum that the right to appointed appellate counsel can
be waived. Ante, at 624, n. 8. This ignores the well
established presumption of waivability, e. g., Mezzanatto, 513
U. S., at 200–201; Hill, 528 U. S., at 114. By ignoring the
presumption, the majority effectively reverses it, espousing
an analysis that is “directly contrary to the approach we have
taken in the context of a broad array of constitutional and
statutory provisions.” Mezzanatto, supra, at 200. For the
proposition that Michigan’s waiver requirement is unconsti
tutional, the majority cites Douglas, 372 U. S., at 357–358,
and M. L. B., 519 U. S., at 110–113, which explained that
States cannot create unreasoned distinctions between indi
gent and moneyed defendants. Ante, at 624, n. 8. These
cases have nothing to do with waiver; they determined only
that certain rights existed, not that they both existed and
were nonwaivable.
The majority seems to think that Michigan’s waiver re
quirement arbitrarily distinguishes between indigents and
more affluent persons. As I have explained, however, the
statute does no such thing. Rather, it sensibly differenti
ates between defendants convicted at trial and defendants
convicted by plea. Supra, at 614–615. The majority’s dic
tum fails to persuade.
3
In this case, the plea colloquy shows that Halbert’s waiver
was knowing and intelligent, and that any deficiency in the
plea colloquy was harmless. See 28 U. S. C. § 2111; cf. Fed.
Rule Crim. Proc. 11(h). First, Halbert understood he was
waiving any appeal as of right: The trial court asked Halbert,
“You understand if I accept your plea you are giving up or
waiving any claim of an appeal as of right,” and Halbert an
swered “Yes, sir.” App. 22. Second, the court explained
the statutory exceptions governing when counsel must or

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might be appointed, and Halbert again indicated that he un
derstood those conditions. Ante, at 629–630 (quoting col
loquy). In context, the court’s enumeration of the limited
conditions in which counsel might be appointed informed
Halbert that counsel would not be appointed in other circum
stances. Third, at the end of the colloquy, the court asked
counsel, “Any other promises or considerations I should be
made aware of?” App. 24, and “Do counsel believe I’ve com
plied with the court rule regarding no contest pleas?” id., at
25, both of which questions the prosecutor and defense attor
ney answered in the affirmative. Cf. Bradshaw v. Stumpf,
ante, at 183 (“Where a defendant is represented by compe
tent counsel, the court usually may rely on that counsel’s
assurance that the defendant has been properly informed of
the nature and elements of the charge to which he is pleading
guilty”). Fourth, the court “f[ound] the plea understand
ingly made, voluntary and accurate.” App. 25. There can
be no serious claim that Halbert would have changed his plea
had the court provided further information.
* * *
Today the Court confers on defendants convicted by plea
a right nowhere to be found in the Constitution or this
Court’s cases. It does so at the expense of defendants
whose claims are, on average, likely more meritorious. And
it ignores that, even if such a right exists, it is fully waivable
and was waived in this case. I respectfully dissent.