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HALBERT v. MICHIGAN
No. 03-10198.
Argued April 25, 2005
Decided June 23, 2005
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 Louisiana et al. as amici curiae urging affirmance. With him on the brief were Charles C. Foti, Attorney General of Louisiana, 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 Lawyers et al. by Anthony J. Frame, 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.
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 accused who pleads guilty or nolo contendere shall be by leave of the court.” Mich. Const., Art. 1, §20. Thereafter, “several Michigan state judges began to deny appointed appellate 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 codification in Mich. Comp. Laws Ann. § 770.3a (West 2000). People 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 assist 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 appellate 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 reasons, 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, 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 obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U. S. 684, 687 (1894). Having provided such an avenue, however, a State may not “bolt the door to equal justice” to indigent defendants. Griffin v. Illinois, 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 conditions an appeal from a conviction on the provision of a trial transcript, the State must furnish free transcripts to indigent 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 protection and due process concerns.” Ibid. “The equal protection concern relates to the legitimacy of fencing out would-be 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 appeal entails an adjudication on the “merits.” 372 U. S., at 357. Second, first-tier review differs from subsequent appellate 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 examined the record to determine whether to appoint counsel. Id., at 355. When a defendant able to retain counsel pursued 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 counsel.” 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 review 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 benefited 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 Constitution 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. 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 counsel appointed for review of the defendant’s conviction or sentence,” 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 applicable 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 appeal[, and the] sentence imposed by the court constitutes an upward departure from the upper limit of the minimum sentence range that the defendant alleges should have been scored.” § 770.3a(lM3).
In People v. Bulger, the Michigan Supreme Court considered whether the Federal Constitution secures a right to appointed 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 decisions, 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 “discretionary,” 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 interest in finality,” ibid. In People v. Harris, the Michigan Supreme Court, adhering to Bulger, upheld the constitutionality of § 770.8a. 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. During 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 answered, “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 circumstances, including Halbert’s own case:
“THE COURT: You understand if I accept your plea and you are financially unable to retain a lawyer to represent you on appeal, the Court must appoint an attorney for you if the sentence I impose exceeds the sentencing 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 improper scoring of the sentencing guidelines, you object to the scoring at the time of the sentencing and the sentence 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?
“THE DEFENDANT: Yes, sir.” Id., at 22-23 (alteration omitted).
At Halbert’s sentencing hearing, defense counsel requested that the sentences for the two counts run concurrently, 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 consecutively. Id., at 35. Halbert submitted a handwritten motion to withdraw his plea the day after sentencing. Denying the motion, the trial court stated that Halbert’s “proper remedy 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 letter and accompanying motion, again seeking appointed counsel. 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, 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 ineffective 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 Appeals 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.
Ill
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 instant case be aligned? We hold that Douglas provides the 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 appeal 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 appeal.”); 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 Michigan Supreme Court, sits as an error-correction instance.
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 statement of proceedings and facts from the court... whose order 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 matters 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 following a plea-based conviction is as “discretionary” as review in the Michigan Supreme Court because both require an application for leave to appeal. See Bulger, 462 Mich., at 506-508, 519, 614 N. W. 2d, at 108, 118; Brief for Respondent 31-34. 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 interest” or “involves legal principles of major significance to the state’s jurisprudence”); Great Lakes Realty Corp. v. Pe 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

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