Simmons v. Kapture

• Decision Date: 15 February 2008
• Docket Number: No. 03-2609.,03-2609.
• Citation: 516 F.3d 450
• Parties: Patrick Marvin SIMMONS, Petitioner-Appellant, v. Robert KAPTURE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

516 F.3d 450

Patrick Marvin SIMMONS, Petitioner-Appellant, v. Robert KAPTURE, Warden, Respondent-Appellee.

No. 03-2609.

United States Court of Appeals, Sixth Circuit.

Argued: September 12, 2007.

Decided and Filed: February 15, 2008.

ARGUED: E. Michael Rossman, Jones Day, Columbus, Ohio, for Appellant. Eric Restuccia, Assistant Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: E. Michael Rossman, Jones Day, Columbus, Ohio, for Appellant. Eric Restuccia, Assistant Attorney General, Lansing, Michigan, for Appellee.

Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.^*

ROGERS, J., delivered, the opinion of the court, in which BOGGS, C. J., BATCHELDER, GILMAN, GIBBONS, COOK, McKEAGUE, and GRIFFIN, JJ., joined. MARTIN, J. (pp. 451-58), delivered a separate dissenting opinion, in which DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

ROGERS, Circuit Judge.

The issue in this case is whether the rule of criminal procedure recently articulated by the Supreme Court in Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005), applies retroactively to cases on collateral habeas corpus review. In Halbert, the Court held that the Equal Protection and Due Process clauses require the appointment of counsel for indigent defendants seeking first-tier review of plea-based convictions in the Michigan Court of Appeals, even when such appeals are discretionary rather than as of right. Id. at 609-10, 125 S.Ct. 2582. Because petitioner Patrick Simmons's state conviction was final when the Court decided Halbert, Halbert's applicability to the instant action is governed by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1988). Under Teague, a "new rule" of criminal procedure does not apply retroactively to cases proceeding on collateral habeas review unless the rule either decriminalizes a class of conduct or is a "watershed" rule that implicates the fundamental fairness and accuracy of a criminal proceeding. Saffle v. Parks, 494 U.S. 484, 494-95, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (citing Teague, 489 U.S. at 311, 109 S.Ct. 1060). A majority of the original panel in this case concluded that Halbert simply involved the application of an existing rule and thus, consistent with Teague, Halbert has retroactive effect. Simmons v. Kapture, 474 F.3d 869 (6th Cir.2007). We granted rehearing en banc and vacated the prior panel's decision.

Supreme Court precedent compels the conclusion that Teague bars the retroactive application of Halbert on collateral review. In short, Halbert announced a "new rule," and that new rule neither decriminalizes a class of conduct nor is a "watershed" rule. The legal analysis in support of these conclusions — which fully addresses the arguments presented in the en banc dissent — is thoroughly set forth in the panel dissenting opinion of District Judge Reeves, sitting by designation, and no purpose would be served by recapitulating it. We incorporate that analysis here. See id. at 879-88 (Reeves, J., dissenting). Because Halbert is inapplicable to this case under Teague, we need not address the warden's contention that, in any event, the language of 28 U.S.C. § 2254(d)(1) forbids reliance on a new rule that is sought to be applied retroactively.

The panel did not reach petitioner's additional claims that his plea was not knowing and voluntary, and that his trial counsel provided ineffective assistance. We return those claims to the panel for review and decision.

BOYCE F. MARTIN, JR., Circuit Judge, dissenting, in which Judges DAUGHTREY, MOORE, COLE and CLAY join.

The majority's adopted opinion¹ finds that the rule announced in Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582 162 L.Ed.2d 552 (2005), does not apply retroactively to Simmons's case because it is a "new rule" under the Teague analysis. Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1988). As I stated in the original majority opinion in this case, retroactivity analysis is an inexact science. Apparently the en banc majority thinks that any inexactitude is an opportunity for reversal² and has created with its adopted opinion an arbitrary and unfair result that denies a significant group of people the opportunity to vindicate their constitutional rights. The new opinion misstates Halbert's rule and finds that it turns on the discretionary nature of first-tier appeals from plea-based convictions. This proposition goes against the plain words of the Supreme Court, as well as the rationale behind the Halbert decision. Halbert's rule is dictated by, and inextricably linked to, the longstanding rule that a state must provide counsel for indigent defendants in a first-level appeal from a criminal conviction. This rule was established long ago in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). The majority's reliance on the precedent set by Ross v. Moffit is misplaced; Ross, too, reiterated that a state cannot adopt procedures that leave an indigent defendant "entirely cut off from any appeal at all" by virtue of his indigency. 417 U.S. 600, 612, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (citing Lane v. Brown, 372 U.S. 477, 481, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963)). The rule is thus not new. Moreover, even if considered "new," it is clearly a watershed rule of criminal procedure because it addresses the fundamental right to counsel, which is necessary to provide the accuracy and fundamental fairness that must underlie a conviction. Teague, 489 U.S. at 315, 109 S.Ct. 1060; see also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

I.

The majority creates an arbitrary window in time during which acknowledged constitutional rights continue to be denied. A bit of background illuminates the problem. In 1994, Michigan amended its constitution to restrict appeals from pleas of guilty or nolo contendere in an effort to reduce the workload of the Michigan Court of Appeals. The purpose of the amendment, however, was never to deny poor defendants the right to counsel. Indeed, the Michigan State Bar Task force, which was charged with recommending solutions to the Appellate Court backlog, stated in its recommendations that "the rights to counsel and to a transcript of the proceedings would remain" in both guilty plea and nolo contendere appeals. Robert B. Webster, Introduction to the Report of the Task Force on Appellate Courts, 7 MICH. B.J. 895 (1993), cited in Note, Limiting Michigan's Guilty and Nolo Contendere Plea Appeals, 73 U. DET. MERCY L.R. 431, 448 (1996). Recognizing that some trial judges and legislators were reading the amendment as abolishing the right to appointed counsel for defendants who sought to appeal their guilty or nolo contendere pleas, the State Appellate Defender's Office Director, James R. Neuhard, wrote a letter to Chief Justice Cavanagh on the Michigan Supreme Court stating that "the language of the amendment very obviously does not change the language regarding the right to counsel on appeal." Letter from the State Appellate Defender Office to Chief Justice Michael F. Cavanagh, at 2 (Dec. 22, 1994) (on file with University of Detroit Mercy Law Review), cited in 73 U. DET. MERCY L.R. at 449. The Michigan Supreme Court later reiterated this understanding. People v. Bulger, 462 Mich. 495, 614 N.W.2d 103, 107 (Mich.2000) ("Proposal B did not alter the provision of art 1, § 20 that grants defendants" "as provided by law, when the trial court so orders, . . such reasonable assistance as may be necessary to perfect and prosecute, an appeal."). On December 30, 1994, the Michigan Supreme. Court adopted an interim rule, MCR 6.425(F)(1)(c), which provided that "in a case involving a conviction following a plea of guilty or nolo contendere the court should liberally grant the request [for appointed counsel] if it is' filed within 42 days after sentencing." Id. at 505, 614 N.W.2d 103. The court later extended the rule indefinitely, citing the need "to protect an indigent defendant's ability to have the assistance of counsel in pursuing appellate remedies." Id., MCR 6.425(G)(1)(c).

The unfortunate window opened with the help of a law providing that those who plead guilty generally "shall not have appellate counsel appointed for review of the defendant's conviction or sentence," MICH COMP. LAWS ANN. § 770.3a (2000), a law this Court found unconstitutional in Tesmer v. Granholm, 333 F.3d 683 (6th Cir.2003) (en banc), rev'd on standing, Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). The window finally closed with Halbert in 2005, which guaranteed the right to counsel on first-level appeals in plea-based convictions. For the limited group of people who pleaded while the window was open, however, the majority's adopted opinion arbitrarily and unfairly ensures that the unconstitutional law lives on.

II.

In 1963, the Supreme Court established the rule that a state must provide counsel for indigent defendants in a first-level appeal from a criminal conviction. See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. Halbert is dictated by, and inextricably linked to, this rule and is thus not new. The Supreme Court in Teague v. Lane explained what amounts to a "new rule" of criminal procedure as follows: "a case announces a new rule when it breaks new ground or imposes a new obligation on the states or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. 1060 (internal citations omitted). Justice Harlan himself noted long before Teague that a decision does not announce a new rule where it "simply applie[s] a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the...