Patrick SIMMONS, Petitioner-Appellant, v. Robert KAPTURE, Respondent-Appellee, 474 F.3d 869

MARTIN, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. REEVES, D.J. (pp. 879-88), delivered a separate dissenting opinion. OPINION BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Patrick Simmons appeals the district court’s denial of his petition for a writ of habeas corpus in which he sought to challenge his guilty plea entered in Michigan state court.

Simmons claims that his plea was not knowing and voluntary, that he was denied effective assistance of counsel in the plea stage, and that the state should have provided him appointed counsel to represent him in the appellate process under the Supreme Court’s recent decision in Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). Simmons filed the present petition before the decision issued in Halbert. After the district court denied him relief, and this Court denied him a certificate of appealability, he filed a writ of certiorari with the Supreme Court.

The Supreme Court granted the writ, remanding the case to this Court for further consideration in light of Halbert. I. Simmons’s guilty plea arose from an incident that occurred in April 1998 at the Rainbow Hotel in Grand Rapids, Michigan, where he was residing at the time. Simmons had become disabled in 1969 from a head injury, which he claims has caused him to suffer from “confusion” ever since. He had a severe problem with alcohol abuse, and appears to have been overindulging with some friends at the time, including the victim, Adrian Blystra, who was staying in Simmons’s room at the hotel.

On the morning of April 5, Simmons lit Blystra’s shirt on fire, causing Blystra to suffer significant burns on his back and shoulder. The parties dispute what Simmons’s intention was in setting the shirt on fire — he characterizes it as a practical joke, while the state describes his mental state in much more malicious terms. Blystra continued to live in Simmons’s apartment at the hotel for several more days, during which time Simmons provided him with Neosporin to help him treat his burn, but he eventually moved out.

Toward the end of April, Blystra sought to have criminal charges brought against Simmons, and on April 30, Simmons was arrested and charged with assault with intent to do great bodily harm less than murder, as well as a habitual offender charge. In return for Simmons’s agreement to plead guilty to the assault charge, the prosecutor dropped the habitual offender charge and agreed to recommend a sentence of five to ten years.

During the October 5, 1998 plea hearing, in an attempt to have Simmons “state the elements of the offense,” the prosecutor, defense counsel, and the trial judge asked him numerous questions about his intent in setting Blystra on fire. Simmons repeatedly stated that he set the fire as a joke, to wake Blystra up, and to get Blys-tra’s attention. He also repeatedly denied attempting to injure Blystra, and stated that he was quite inebriated at the time.

Eventually, however, Simmons agreed with the prosecutor’s statement that he “went up to a man who was passed out, and [ ] lit him on fire, knowing that would cause him injury....” Joint App’x at 246. Both the prosecutor and defense counsel repeatedly tried to contradict Simmons’s characterization of the incident as a joke. Defense counsel essentially cross-examined him about his intent, and argued to the court that Simmons had admitted sufficient mens rea for the court to accept his plea.

The trial judge expressed significant hesitation in accepting the plea, in apparent recognition of Simmons’s wavering explanations of his mental state. The judge noted that “he stated basically his intent was to wake Mr. Blystra up, and he didn’t have any idea that he would be injured to any extent,” id. at 245, and described the explanation of Simmons’s intent as “shaky.” Id. at 243.

Eventually however, the trial court accepted the plea, explaining that “it’s not per se that it will satisfy this Court, but I believe that there is [sic] still higher courts that may well review this matter, and they’re certainly entitled to do that, although it’s not a right of appeal. I think we have covered enough in this that I’m satisfied as well as counsel being satisfied that we’ve covered the elements of this offense.” Id. at 248. II. Simmons’s case followed a complicated procedural route between the entry of his guilty plea and his current filing in this Court.

Just over a month after the entry of his plea, on November 19, 1998, Simmons requested that the trial court appoint him appellate counsel to assist him in filing an application for leave to appeal in the Michigan Court of Appeals. His proffered basis for appeal was .that he had been forced by the terms of the plea offer to plead guilty. This request for counsel was denied on December 1. Simmons then filed an application for leave to appeal pro se in January 1999. That request was denied for failing to follow the court rules regarding the number of copies to be filed.

On November 10,1999, Simmons filed a pro se motion for relief from judgment in the trial court, challenging his plea on the basis that it was involuntary and not supported by the facts, and claiming ineffective assistance of counsel. This motion was also denied by the trial court, as was his subsequent motion for reconsideration. Simmons then filed another application for leave to appeal the trial court’s decision with the Michigan Court of Appeals, again without the assistance of counsel, which again was summarily denied.

Simmons sought a discretionary appeal of the Court of Appeals’s decisions with the Michigan Supreme Court, and this final request to the state courts was also denied. Simmons next turned to the federal courts, filing a petition for writ of habeas corpus in the United States District Court for the Western District of Michigan on February 20, 2001. He claimed in the habeas petition that his plea was not supported by sufficient evidence, and that he was denied effective assistance of counsel at the plea stage. At the outset, Simmons sought a stay of the proceedings so as to obtain counsel.

This request was denied by the district court. The district court also denied Simmons’s motion for an evi-dentiary hearing, and his case was referred to a magistrate judge. In a report and recommendation filed on September 24, 2003, the magistrate recommended that the habeas petition be denied. The magistrate reasoned that Simmons’s plea was knowing and voluntary, as Simmons understood the nature of the charge against him and the sentence to which he was subject, and also found that the Constitution did not require the state court to establish a factual basis for a guilty plea.

The magistrate agreed with the state court that Simmons’s attorney effectively represented him at the plea stage by persuading the trial court to accept a desirable plea bargain, and that this approach explained her choice not to interview additional witnesses or to elicit factual testimony from Simmons to support the plea. Finally, the magistrate addressed Simmons’s habeas claim for the state’s failure to appoint him appellate counsel, noting that under Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), a state court does not have to appoint counsel in a discretionary appeal.

Because appeals from guilty pleas in Michigan were discretionary, the magistrate rejected this claim as well. The district court adopted the magistrate’s report and recommendation, and denied Simmons a certificate of appealability on November 7, 2003. This Court also denied Simmons’s application for a certificate of appealability on August 19, 2004. Undeterred after this string of rejections from the courts of Michigan and those of this Circuit, Simmons subsequently petitioned for a writ of certiorari with the United States Supreme Court.

On June 28, 2005, the Supreme Court granted the writ, and simultaneously vacated the judgment and remanded to this Court for further consideration in light of Halbert v. Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). In response, this Court issued a certificate of appealability for the present appeal, which defined the issues of Simmons’s claim as (1) whether Halbert affords any relief for Simmons; (2) whether Simmons’s guilty plea was valid, and whether this issue has been waived; and (3) whether trial counsel was ineffective, and whether this issue has been waived. III.

This Court reviews a district court’s decision regarding a writ of habeas corpus de novo. Dando v. Yukins, 461 F.3d 791, 795 (6th Cir.2006). Factual findings made by the district court are reviewed for clear error unless the factual determinations are made based on state court documents, in which case they are considered de novo. Id. at 796.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”), a federal court may not grant habeas relief on any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim either— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d).

Here, because the state courts declined to address the merits of Simmons’s claims at all when they denied all of his applications for leave to appeal, his claims were not “adjudicated on the merits” in state court, and AEDPA’s deferential standard of review does not apply. Maples v. Stegall, 340 F.3d 433, 436 (6th Cir.2003). rv. A. The Supreme Court’s Holding in Halbert In Halbert v.

Michigan, the Supreme Court held that “the Due Process and Equal Protection Clauses require the appointment of counsel for defendants, convicted on their pleas, who seek access to first-tier review in the Michigan Court of Appeals.” 125 S.Ct. at 2586. The Court noted that its decision was “framed by two prior [Supreme Court] decisions concerning state-funded appellate counsel,” Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

In Douglas, the Court had held that states are required to appoint counsel for an indigent defendant’s “first-tier” appeal as of right, reasoning that such an appeal involved the merits of the case and differs from subsequent levels of review where another appellate court has already reviewed the claims. In Ross, the Court declined to extend Douglas to require appointed counsel for “second-level” discretionary appeals filed with the North Carolina Supreme Court.

The Ross Court distinguished Douglas by reasoning that “both the opportunity to have counsel prepare an initial brief in the Court of Appeals and the nature of discretionary review in the Supreme Court of North Carolina make this relative handicap [of proceeding pro se] far less than the handicap borne by the indigent defendant denied counsel on his initial appeal as of right in Douglas.” 417 U.S. at 616, 94 S.Ct. 2437.

In Halbert, the Court addressed Michigan’s rule governing appeals from pleas of guilty or nolo contendere, which unlike most appeals from criminal convictions are not heard as of right, but only after the discretionary grant of a convicted defendant’s application for leave to appeal. 125 S.Ct. at 2587-88. The Michigan Constitution was amended to include this provision in 1994, so as to reduce the workload of the Michigan Court of Appeals, which had previously “adjudicated appeals as of right from all criminal convictions.” Id.

After the enactment of this provision, the Michigan Supreme Court determined that the Federal Constitution did not require the state to appoint appellate counsel for indigent defendants seeking review in the state Court of Appeals. Id. (citing People v. Bulger, 462 Mich. 495, 511, 614 N.W.2d 103 (Mich.2000)). Like Simmons, Halbert sought appointed counsel to file an application for leave to appeal his guilty plea. Id. at 2589-90. His requests were denied, as were his applications for leave to appeal by both the state Court of Appeals and the Michigan Supreme Court. Id. at 2590.

The Supreme Court granted certiorari of the state supreme court’s decision, and vacated the state courts’ judgments. At the outset of its opinion, the Court in Halbert noted that although the Federal Constitution did not require states to provide any appellate review of criminal convictions whatsoever, “having provided such an avenue, [] a State may not ‘bolt the door to equal justice’ to indigent defendants.” Id. at 2586.

The Court stated that its holding was based both on the Equal Protection concern regarding “the legitimacy of fencing out would-be appellants based solely on their inability to pay core costs,” as well as the Due Process concern of “the essential fairness of the state-ordered proceedings.” Id. The state argued that because an appeal from a guilty plea is discretionary pursuant to state law, the case should be governed by Ross.

Halbert contended that Douglas required the state to appoint counsel for an application for leave to appeal with the Michigan Court of Appeals, because it amounted to a first-tier appellate proceeding. The Court agreed with Halbert, finding the situation more analogous to that in Douglas because “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 [and because] indigent defendants pursuing first-tier review in the Court of Appeals are generally ill equipped to represent themselves.” Id. at 2590.

The Court distinguished Ross by noting that unlike the North Carolina (or Michigan) Supreme Court, which granted leave to hear appeals on matters other than the commission of error by a lower court, such as matters of significant public interest, “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 defendant’s claims, not by the general importance of the questions presented.” Id. at 2591.

Further, “the Court of Appeals’ 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.” Id. Given these similarities between the Michigan procedure for appeals from guilty pleas and the issue presented in Douglas, the Court held that the Equal Protection and Due Process clauses required Michigan to appoint counsel for applications for leave to appeal from guilty pleas filed in the Michigan Court of Appeals.

Thus, although there are no constitutional problems with a state’s decision to make certain criminal appeals discretionary, state courts are required to provide appointed counsel for indigent defendants who seek leave to appeal their guilty pleas. B. Application of Halbert to Simmons’s petition for habeas relief There is no dispute that under the rule from Halbert, were Simmons’s plea to be entered today, the state would be required to appoint an attorney to represent him in filing an application for leave to appeal.

The question we must address is whether the rule applies retroactively to affect Simmons’s habeas claim. Both parties recognize that Simmons’s conviction was final at the time of the Halbert decision, and that the applicability of Halbert turns on the Supreme Court’s holding in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1988), that new rules of criminal procedure do not generally apply retroactively to cases proceeding on collateral habeas review, unless they meet one of two specific exceptions.

Simmons contends that Halbert applies retroactively because it did not create a new rule, but simply applied the existing rule from Douglas. In the alternative, Simmons argues that the Halbert rule falls under the Teague exception regarding “watershed rules of criminal procedure.” The state disagrees with both of these contentions, and argues that Teague’s general rule against retroactivity bars the application of Halbert to Simmons’s habeas petition.

The Teague Court explained what amounted 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).

The Court has also noted 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 prior case law.” Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (quoting Mackey v. United States, 401 U.S. 667, 695, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring in part and dissenting in part)).

Under this approach, Simmons argues convincingly that Halbert did not announce a new rule at all, but merely applied the forty-year-old rule from Douglas that in a first-level appeal from a criminal conviction, a state must provide appointed counsel for indigent defendants. The Supreme Court explicitly noted in Halbert that “Douglas provides the controlling instruction.” 125 S.Ct. at 2590.

Even though Ross arguably represented analogous authority with its ruling that discretionary second-level appeals do not require appointed counsel, the Supreme Court has also explained that “the mere existence of conflicting authority does not necessarily mean that a rule is new.” Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (quoting Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Connor J., concurring)).

Moreover, the opinion in Ross emphasized that its holding was distinguishable from Douglas not because it involved discretionary appeals as opposed to appeals of right, as the state contends, but because it involved a second level of appellate review.

The Ross Court explained that a defendant seeking leave to appeal in the North Carolina Supreme Court has already “received the benefit of counsel in examining the record of his trial and in preparing an appellate brief on his behalf for the state Court of Appeals, [and t]hus prior to his seeking discretionary review in the State Supreme Court, his claims had ‘once been presented by a lawyer and passed upon by an appellate court.’ ” Ross, 417 U.S. at 614, 94 S.Ct. 2437 (quoting Douglas, 372 U.S. at 365, 83 S.Ct. 814).

Further, the Ross Court explained that the North Carolina Supreme Court is primarily concerned with whether cases involve matters of significant public interest or legal principles of major significance, and unlike the first-level Court of Appeals, is not primarily concerned with “whether there has been a correct adjudication of guilt in every individual case.” Id. at 615, 94 S.Ct. 2437.

The state actually points to this part of the analysis in Ross to argue that its holding rests on whether review is discretionary or as of right, and that Halbert thus created a new rule by extending Douglas to discretionary appeals. Appellee’s Br. at 21. In fact the opposite is likely true. The relevant distinction identified by the Ross Court was that the North Carolina Supreme Court’s discretion to grant leave to appeal turned on the importance of the subject matter of the legal issue presented, and that it was not used to correct errors at the trial court level.

See Ross, 417 U.S. at 615, 94 S.Ct. 2437 (“The Supreme Court [of North Carolina] may deny certiorari even though it believes that the decision of the Court of Appeals was incorrect.”). It is the “error correction” role of the Michigan Court of Appeals (as opposed to the “deciding matters of public interest” role) that dictated the result in Halbert — not, as the state contends, whether the appeal in question was as of right or discretionary.

Because the Michigan Court of Appeals acts to correct errors, even if it first exercises its discretion in deciding which potential errors to address, the result in Halbert is really an application of the “old rule” from Douglas. The legal regime framed by Douglas and Ross thus required appointed appellate counsel at the first level of appellate review, but not at the second level.

Significantly, when the Halbert Court examined the combined precedential value of Doug las and Ross, it followed the same distinction that the Ross Court did, recognizing a stronger claim for appointed appellate counsel in first-tier appellate review than in second-tier review. Under this view, it was simply a tangentially related circumstance that most first-level appeals in state courts happen to be as of right, while second-level appeals tend to be discretionary, despite the state’s current argument that this is the critical distinction.

It necessarily follows that Halbert was dictated by Douglas, and therefore does not create a new rule under Teague. The state also relies on the Court’s statement in Halbert that its decision was framed by Ross and Douglas to argue that this means it “broke new ground.” This argument is unconvincing. First, the simple fact that Halbert presented an issue that fell between two precedential cases with different results does not mean that the application of one of the prior holdings to the new situation created a new rule.

Moreover, while the results in Ross and Douglas were opposite and may have formed bookends to the issue in Halbert, the analysis in Ross does nothing to refute the application of the holding in Douglas to first-tier appellate review. The critical distinction prior to Halbert — and before Simmons’s guilty plea was entered — that in fact dictated the result in Halbert was that appointed appellate counsel is required for first-tier, but not second-tier appellate review. Halbert simply clarified this pre-existing distinction.

Thus, although the results of Ross and Douglas may have “framed” the issue in Halbert, the holding of Halbert was virtually compelled by the analysis in both of the two prior cases, and cannot be said to represent a new rule. Interestingly, before the Supreme Court’s decision in Halbert, this Court addressed en banc the very same question in Tesmer v.

Granholm, 333 F.3d 683, 701 (6th Cir.2003) (en banc), and declared that Michigan’s denial of appointed counsel for first-level applications of leave to appeal was unconstitutional: Michigan’s statute creates unequal access even to the first part of the appellate system. Though the judge-appellants argue that any distinctions in Michigan’s appellate system stem from the fact the indigent pleads guilty, or that the appeal is merely discretionary, the effect is to create a different opportunity for access to the appellate system based upon indigency.

As applied, the statute violates the due process provision of the Fourteenth Amendment to the United States Constitution, and is thus unconstitutional. That decision was later reversed by the Supreme Court, which held, without reaching the merits, that the plaintiffs did not have standing to bring suit. Kowalski v. Tesmer, 543 U.S. 125, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004).

Although the Supreme Court’s reversal rendered this Court’s decision unenforceable and without precedential value, the opinion from this Court, which followed Douglas, offers persuasive support for the proposition that the decision in Halbert was dictated by Douglas, and that Halbert therefore did not announce a new rule. At a minimum, a majority of the active judges of this Court — who, unlike the Supreme Court, lacked the authority to extend Douglas— believed that the result in Halbert was commanded by Douglas.

The Halbert decision later confirmed this reading of Douglas in a case where standing was deemed appropriate. While non-binding for present purposes, our gre-Halbert belief that Halbert was dictated by Douglas reinforces the same reading of these cases that we outline today. The dissent does a thorough job of analyzing the opinions of those judges who, prior to the decision in Halbert, argued that its eventual holding did not necessarily follow from Douglas. We would concede that these divergent opinions render the retroactivity question closer than it might otherwise be.

Nevertheless, the Supreme Court has instructed us that the presence of dissenting opinions does not construct an absolute barrier to a determination that one of its decisions did not create a new rule under Teague. See Beard, 542 U.S. at 416 n. 5, 124 S.Ct. 2504; Williams, 529 U.S. at 410, 120 S.Ct. 1495. We further believe that while these dissenting opinions are instructive, over-reliance on them can only serve to muddy the waters of the already inexact science of retroactivity analysis.

The bottom line in the analysis as applied to the instant case is whether Halbert “simply applied a well-established constitutional principle to govern a case which is closely analogous to those which have been previously considered in the prior case law.” Penry, 492 U.S. at 314, 109 S.Ct. 2934. We find that this question should be answered in the affirmative, and that when Michigan denied Simmons appointed appellate counsel, it violated his rights under Douglas. We hold that the rule in Halbert is not a “new rule” under Teague, but instead merely applies the holding of Douglas.

Halbert thus applies retroactively to Simmons’s case, and Simmons is entitled to a writ of habeas corpus based on the state’s failure to appoint him appellate counsel for his motion for leave to appeal his guilty plea.

Because we are convinced that the rule from Halbert is not new, and therefore is unaffected by Teague’s retroactivity bar, we need not reach the question of whether Halbert falls into one of the Teag-ue exceptions that allow retroactive application of a “new rule.” Simmons is thus entitled to a writ of habeas corpus on the ground that Michigan’s refusal to appoint him appellate counsel to challenge his guilty plea was unconstitutional, as clarified in Halbert. V.

Simmons also presents two independent grounds for habeas relief, arguing that his plea was not knowing and voluntary, and that he was denied the effective assistance of counsel at the plea stage under Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). We decline to reach the merits of either of these claims. The record with regard to both of these issues is relatively sparse.

However as Simmons points out, the state’s unconstitutional deprivation of appellate counsel likely prevented him from conducting any meaningful review or establishing a record in his collateral attack on his guilty plea in state court. See Halbert, 125 S.Ct. at 2593 (“Navigating the appellate process without a lawyer’s assistance 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.”).

It would make little sense for the federal courts to determine that Simmons was unconstitutionally deprived of appellate counsel to challenge his guilty plea in the state courts, but then to rely on the shortcomings of the state court record for him to challenge his plea, when the inadequacies of the record are likely a product of the unconstitutional deprivation of counsel. Because these claims have to be considered with the state’s unconstitutional deprivation of appellate counsel in mind, Simmons should not be penalized for failing to adequately develop the state court record on these points.

In light of the connection between these issues, and our decision that Simmons is entitled to a writ on his Halbert claim, the appropriate course is for the district court to issue the habeas writ based on the denial of appointed counsel under Halbert, and to allow Simmons’s ineffective assistance of counsel claim and his claim that his plea was not knowing and voluntary to be raised in state court with the benefit of appointed counsel as part of the remedy for the violation of Halbert.

The state also contends that Simmons waived both his ineffective assistance of counsel claim and his claim that his plea was not knowing and voluntary by initially pleading guilty. As Simmons points out, a waiver by way of a guilty plea can only be valid “if [the] guilty plea was knowing, voluntary, and intelligent.” United States v. Webb, 403 F.3d 373, 378 (6th Cir.2005). It is thus circular and unavailing to argue that by pleading guilty, a defendant waives his right to challenge the knowing and voluntary nature of the guilty plea.

Similarly, because Hill allows challenges to guilty pleas on the basis of ineffective assistance of counsel, and every ineffective assistance of counsel claim challenging a guilty plea must necessarily be brought after entry of a guilty plea, allowing waiver through a guilty plea of a claim brought under Hill would render that case a nullity. We therefore reject the state’s waiver arguments. VI. For the foregoing reasons, this case is remanded to the district court, with instructions to grant Simmons a writ of ha-beas corpus for the state’s failure to appoint him appellate counsel under Halbert.

The writ should also make clear that the state courts must allow Simmons to re-argue — with the assistance of appointed counsel — his ineffective assistance of counsel claim and his claim that his plea was not knowing and voluntary. . In an amicus curiae brief in support of the state, the Prosecuting Attorneys Association of Michigan ("PAAM”) attempts to argue that Simmons’s claim for appointed appellate counsel under Halbert is unexhausted, stating that "[i]t has never been presented in the Michigan system, and certainly not to the Michigan Supreme Court.” PAAM Br. at 5, n. 5.

This argument is not made by the respondent. Simmons clearly presented arguments that he was entitled to appointed appellate counsel in his initial applications for leave to appeal with both the Michigan Court of Appeals and the Michigan Supreme Court.

Amicus PAAM thus seems to be arguing that despite exhausting his claims in state court before filing the present habeas petition, Simmons should be required to pursue his claims yet again in state court (and apparently seek to stay proceedings on his habeas petition) because while his habeas petition was pending, the Supreme Court decided Halbert, which would lend him added support.

Although Amicus identifies Michigan authority that would allow Simmons to re-file in state court, it points to no federal authority that extends AEDPA's exhaustion requirement to require re-filing in state court, nor is such a requirement apparent from the text of the statute. See 28 U.S.C. § 2254(b)(1)(A) (prohibiting granting a habe-as writ "unless it appears that the applicant has exhausted the remedies available in the courts of the State.”). We believe that Simmons’s repeated attempts for state court appellate review clearly meet AEDPA’s exhaustion requirements. .

Simmons's alternative argument that if Hal-bert was in fact a new rule, it should be deemed a watershed rule of criminal procedure (the second Teague exception) could potentially be meritorious. Clearly, if Halbert is considered to have established a new rule, it involved an extension of the right to counsel to first-tier appeals from guilty pleas. The Supreme Court has continuously emphasized that decisions involving the right to counsel are the primary example of watershed rules.

See, e.g., Beard 542 U.S. at 417, 124 S.Ct. 2504 ("[i]n providing guidance as to what might fall within this exception, we have repeatedly referred to the rule of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel), and only to this rule.”); Howard v.

United States, 374 F.3d 1068, 1080 (11th Cir.2004) (noting that despite the narrowness of the second Teague exception "[t]he exception that proves the exception, however, is a new Gideon-related rule” and that ”[a]t the risk of oversimplification, for purposes of the second Teague exception there are new rules, and then there are new Gideon-extension rules.”).

Also significant is the fact that Halbert emphasized the accuracy and fairness that appointed counsel would add to first-tier appeals, as the second Teague exception is largely focused on rules that implicate the fundamental fairness and accuracy of the criminal proceeding. 125 S.Ct. 2592-93 ("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.”); see Beard, 542 U.S. at 417, 124 S.Ct. 2504.

Perhaps most convincingly, the case that was most similar to Halbert (and dictated the result in Halbert) was Douglas, which the Supreme Court has noted was applied retroactively. See McConnell v. Rhay, 393 U.S. 2, 3, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968). Nevertheless, our consideration of this exception is unnecessary in light of our determination that Halbert did not create a new rule.