En Banc Sixth Circuit Holds Halbert v. Michigan Does Not Apply Retroactively on Federal Habeas Review

The en banc Sixth Circuit yesterday held in an 8-5 vote that Halbert v. Michigan does not apply retroactively on federal habeas review.  In Halbert, the Supreme Court held that the Fourteenth Amendment requires appointment of counsel for appeals of plea-based convictions even under Michigan's unique system that made those appeals discretionary rather than as of right.  Since that Court has used Gideon v. Wainwright as the rare example of a watershed case that would properly apply retroactively, one would think that Halbert might be a good candidate for retroactivity.  Not so, says the Sixth Circuit.  Interestingly, the en banc majority adopts the dissent from the earlier panel hearing rather than writing a full opinion.  You can read the decision here. [Mike Mannheimer]