Despite the contrary impression generated by popular depictions"”such as Law & Order and CourtTV"”it is a well-known fact of criminal justice that over ninety percent of defendants plead guilty without trial. In Halbert v. Michigan, scheduled for oral argument on Monday, the Supreme Court will again consider an issue of utmost importance to, at the very least, criminal defendants in Michigan: the scope of their right to appointed counsel to challenge aspects of their guilty pleas such as their sentences. In Kowalski v. Tesmer, argued earlier this Term, the Court considered the same issue, but decided the case on standing grounds without reaching the merits of the claim.

Antonio Dwayne Halbert pleaded no lo contendere (treated the same as a guilty plea for the purposes relevant to this case) to two charges of criminal sexual conduct with a minor but sought to challenge his sentence through appeal. Under the Michigan constitution, appeals by defendants who plead guilty are by leave of the court of appeals. Halbert's request for appointed counsel to assist in his petition for appellate review was rejected; his self-prepared petition then was denied “for lack of merit in the grounds presented.” The key issue is whether this was a first appeal as of right, requiring appointment of counsel under Douglas v. California (1963), or a discretionary appeal, for which appointment of counsel is not required under Ross v. Moffitt (1974).

David A. Moran of Detroit, Michigan, a professor at Wayne State University, will argue for Halbert. Assistant Attorney General Bernard E. Restuccia of Lansing, Michigan will argue for the state. He will share his argument time with Gene C. Schaerr of Sidley's Washington, DC office, who will argue on behalf of Louisiana et al. as amici curiae.

Halbert and Michigan's briefs are available here. The brief of Louisiana, et al., as amici curiae is only available on paid services.


The procedural background to Halbert's case is complex, and the two parties view it differently. Michigan previously gave all convicted defendants a first appeal as of right. However, in order to relieve the pressure on the intermediate courts of appeals, the Michigan constitution was amended in 1994 to require defendants who plead guilty to petition for leave of the court in order to appeal. After these changes, the Michigan legislature passed a statute that limited mandatory appointments of appellate counsel for defendants who pled guilty to four specific scenarios: 1) the prosecutor petitions for leave to appeal; 2) the sentence exceeds the guidelines' sentencing range; 3) the court grants the defendant's leave to appeal; or 4) the defendant is appealing a conditional plea. The trial court also has discretion to appoint appellate counsel when the defendant alleges a guidelines' scoring error that increases his or her sentence and an objection was made at the time of sentencing. Outside of these circumstances, a court is not allowed to appoint counsel.

Shortly after his sentencing, Halbert unsuccessfully moved to withdraw his plea. The trial court, on two different occasions, denied Halbert's request for appointed appellate counsel to help petition the court of appeals for review. After the court of appeals and Michigan Supreme Court denied his petitions for leave to appeal, the Supreme Court granted Halbert's pro se cert. petition.

Halbert's main contention is that the petition for review is a first direct appeal as of right "“ rather than a subsequent discretionary direct or collateral appeal, as in Ross "“ and therefore appointment of appellate counsel is required under Douglas. Furthermore, he argues that as in Douglas, state law requires that the petition be decided on the merits of the claim, whereas in Ross the appeal could be denied for any reason. Even if Ross governs, Halbert next argues, appointment of counsel is required because Halbert lacked the tools, which Ross said were present on subsequent discretionary appeals, necessary to give him meaningful appellate access. Unlike in Ross, Halbert notes, he did not have the benefit of a previous appellate brief, court opinion, or argument transcript. Thus, giving indigent defendants like Halbert the right to petition for leave to appeal without the assistance of counsel would provide “only the right to a meaningless ritual, while the rich man has a meaningful appeal.” Douglas held that such a situation violated the Constitution. Finally, Halbert argues, he never waived his right to appellate counsel and, in any event, Michigan cannot require such a waiver only from indigents.

The second question presented in Halbert's brief on the merits is whether Halbert is entitled to a new appeal with the assistance of counsel so that he can develop a record to support his appellate claims, which include an allegation that his trial counsel was constitutionally deficient. This question differs from the second question raised in Halbert's pro se cert. petition, which asked whether Halbert is entitled to resentencing due to the ineffective assistance of counsel. In his brief on the merits, Halbert contends that the state of the record is such that the Supreme Court cannot make a determination on his ineffective assistance claim; instead, he asks the Court to vacate the order of the Michigan Court of Appeals denying his application for leave to appeal, direct that court to appoint counsel for him, and allow a new application.

The state of Michigan argues that appointment of counsel is not required because the petition for review is a second, discretionary review. The state argues that the defendant is entitled to a first review, with appointed counsel, in the trial court, which is required to “ensure the fairness and validity of the plea and sentence.” The petition to the court of appeals is then a request for a second review that is fully within the discretion of the court to grant"”there is no right to have the matter examined on the merits"”and thus Ross, not Douglas, governs. Furthermore, Michigan argues, the system satisfies the requirements of Ross because the defendant is provided all the tools necessary for a petition to appeal"”a transcript, an argument setting forth his claims, and an opinion"”through the first review in the trial court. Finally, the state argues that even if a right to appointed counsel existed, Halbert waived this right when the judge read him portions of the Michigan statute regarding appointment of appellate counsel and he agreed to its terms.

Led by Louisiana, a group of states have filed a brief and will present oral argument as amici curiae. They argue that Douglas is limited to first-tier, direct appeals as of right and should not be extended to discretionary first-tier appeals. According to the states, the Court, as it did in Ross, should recognize that Douglas is a limited right and resist requests to extend it. Finally, they argue that it is perfectly valid for the state to require waiver of any right to appointed appellate counsel as a condition for the plea.

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