                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 20a0261p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 DANIEL MARTIN PIRKEL,                                       ┐
                                 Petitioner-Appellant,       │
                                                             │
                                                              >        No. 19-1349
        v.                                                   │
                                                             │
                                                             │
 DEWAYNE BURTON, Warden,                                     │
                                 Respondent-Appellee.        │
                                                             ┘

                          Appeal from the United States District Court
                     for the Western District of Michigan at Grand Rapids.
                     No. 1:11-cv-00205—Robert J. Jonker, District Judge.

                                      Argued: June 9, 2020

                              Decided and Filed: August 14, 2020

                   Before: CLAY, ROGERS, and DONALD, Circuit Judges.
                                  _________________

                                            COUNSEL

ARGUED: Sundeep Iyer, HOGAN LOVELLS US LLP, Washington, D.C., for Appellant.
Scott Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellee. ON BRIEF: Sundeep Iyer, Neal Kumar Katyal, HOGAN LOVELLS US LLP,
Washington, D.C., for Appellant. Scott Shimkus, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee.
                                      _________________

                                             OPINION
                                      _________________

       BERNICE BOUIE DONALD, Circuit Judge.                      Daniel Pirkel has long been seeking
appellate representation to help him attack his no contest plea to a series of crimes for which he
was convicted in 2008. He filed pro se appeals before the Michigan Court of Appeals and the
 No. 19-1349                             Pirkel v. Burton                                   Page 2


Michigan Supreme Court, but, without the benefit of appellate counsel, he lost those appeals.
Next, he filed a pro se 28 U.S.C. § 2254 habeas petition in federal court, challenging the
Michigan courts’ procedure in allowing his appellate counsel to withdraw and failing to appoint
replacement counsel. The district court did not appoint counsel and denied Pirkel relief. Now,
with the benefit of counsel, Pirkel’s claims are clear. At the outset, we note that the right to
counsel is fundamental to our adversary system. Here, however, the Michigan trial court failed
to conduct its own review of the merits of Pirkel’s appeal before allowing Pirkel’s appellate
counsel to withdraw based on a conclusory statement that he could not find any issues to appeal.
The Constitution requires more before a court allows counsel to withdraw. Thus, in denying
Pirkel’s claims on appeal, the Michigan courts unreasonably applied clearly established federal
law announced by the Supreme Court. Accordingly, Pirkel is entitled to a new first-tier appeal in
the Michigan courts that complies with the guarantees of the Constitution. We REVERSE and
REMAND.

                                                I.

       The State of Michigan charged Pirkel with seventeen different crimes in just a few short
months. Michigan charged Pirkel with criminal sexual misconduct and accosting a minor based
on Pirkel’s actions on May 25, 2007. Next, on June 5, 2007, Pirkel entered a supermarket in
Three Rivers, Michigan, and grabbed the buttocks of a female employee. Employees then
reported seeing Pirkel pull the fire alarm. Police quickly arrested Pirkel in the store’s parking lot
while he was trying to gain entry into his car. Police recovered a loaded rifle from the car and
found that Pirkel was wearing boots that had been stolen from the store. Based on this incident,
the State of Michigan charged Pirkel with carrying a concealed weapon, possessing a loaded
firearm in a vehicle, misdemeanor retail fraud, and misdemeanor assault and battery.

       On June 16, 2007, Pirkel stole a four-wheeler. After crashing the four-wheeler in the
woods, Pirkel began fleeing, but officers were tracking him. Pirkel exchanged gunfire with the
police. During this exchange, Pirkel was struck in the buttocks with a bullet. Pirkel then jumped
into the water, and the police could see only his head. The officers, now in boats, approached
Pirkel and told him to keep his hands above the water, but Pirkel would not and yelled, “Just
shoot me. You’re going to have to shoot me. Just kill me.” At some point, Pirkel pulled out a
 No. 19-1349                            Pirkel v. Burton                                   Page 3


knife. When Pirkel partially emerged from the water during the chase, an officer used his taser
on Pirkel’s back. After Pirkel started submerging again, the officer shut off the taser, but Pirkel
came up again with his knife in hand. When Pirkel tried to climb into one of the boats, a
different officer kicked Pirkel hard. The officer then used his taser several more times as Pirkel
continued to swing the knife and refused to put it down. Eventually officers got the knife away
from Pirkel. Pirkel continued to try to flee, and one of officers used mace on Pirkel. Pirkel
continued to struggle and try to flee throughout the encounter, but eventually officers handcuffed
him and transported him to the hospital for treatment for his wounds.

       According to the police report, officers Mirandized and interrogated Pirkel right after
they arrested him. Pirkel told officers where he dropped his gun. He also stated that he knew he
was shooting at police and was trying to get them to shoot back and kill him. He noted that he
had recently tried to commit suicide and reiterated his hope that the police would kill him.

       Based on this incident, the State of Michigan charged Pirkel with eleven crimes: two
counts of assault with intent to murder, resisting and obstructing an officer causing serious
impairment, receiving and concealing stolen property, four counts of assault with a dangerous
weapon, resisting and obstructing an officer causing injury, fleeing and eluding a police officer,
and possession of a firearm during the commission of a felony.

Plea Hearing

       The Michigan trial court held a plea hearing on January 24, 2008.            Pirkel initially
expressed some reservations about entering his plea: “I understand [the plea deal] but I don’t
know, I’m just reading stuff right now for the first I’ve ever read it—or known about it, but I—I
feel like I’m getting my arm twisted to do it.” The court then allowed Pirkel roughly ninety
minutes to read police reports regarding his most recent slate of charges. When the court
reconvened, Pirkel indicated that he had an opportunity to review those documents.

       Pirkel pleaded no contest to all of the charges except the criminal sexual conduct and
accosting a minor charges, which the government agreed to drop in exchange for Pirkel’s plea.
The trial court explained that it would treat Pirkel’s no contest plea the same as a guilty plea.
Pirkel stated that he understood the plea agreement. The court listed the charges and the
 No. 19-1349                             Pirkel v. Burton                                   Page 4


maximum punishments for each. Pirkel then pleaded no contest to each charge. Pirkel stated
that no one had threatened him or promised him anything in exchange for his plea, and he agreed
that he was pleading no contest of his own free will. With agreement from Pirkel’s counsel, the
government then made an offer of proof on the charges against Pirkel. While the government
made a full offer of proof on the earlier charges against Pirkel, it simply admitted the police
reports for the later charges without objection. Finally, the court accepted Pirkel’s no contest
plea.

Sentencing

        Prior to sentencing, Pirkel sent a letter to the trial court expressing concerns with his
representation and his plea. He wrote:

        I am under duress by my own counsel and I feel from the start that they have not
        been working for me. I feel like a lamb being led to the slaughter. I am in no way
        comfortable with anything pertaining to my case such as my plea, my lawyers,
        and my mental state. All in all with the above court proceedings I feel it has been
        a lie and I don’t trust my lawyers. I asked Mr. Bush to postpone my sentencing
        because I didn’t understand all of my charges plus I feel that I was pressured to
        take an unfair plea that I did not want to take. It is my hopes that you will find in
        this letter reason enough to help me in any way you see fit.

At the beginning of the sentencing hearing, Pirkel’s attorney also asked the court to adjourn
sentencing because he and Pirkel had only recently received the pre-sentence report. In response
to the letter, the trial court stated that it had reviewed a tape of Pirkel’s plea hearing and would
not allow Pirkel to withdraw his plea. The court refused to appoint new attorneys, but it gave
Pirkel and his attorneys about forty minutes to talk through the pre-sentence report before
reconvening. The court then heard arguments from both sides, including Pirkel himself, on the
length of the sentence. Before announcing the sentence, the court stated that “[i]n reading the
reports, it—it made sense to me, your behavior, when it came out that you were trying to get
them to kill you and not intending to—to kill them necessarily, although you shot in their
direction.” The court then sentenced Pirkel to 20 to 50 years in prison on the two counts of
assault with intent to murder and to two years in prison for a firearms offense, run consecutively
to the main sentence. The court ran the rest of the sentences concurrently to the sentence for the
assault with intent to murder.
 No. 19-1349                            Pirkel v. Burton                                     Page 5


Appeal and Withdrawal

       Pirkel requested and was appointed appellate counsel: John Ujlaky. In a letter, Ujlaky
advised Pirkel that he “found no issue of even colorable merit to pursue on [Pirkel’s] behalf,”
finding that Pirkel’s plea was freely, knowingly, and voluntarily given without any issues in the
scoring of the sentencing guidelines.      Ujlaky asked Pirkel to agree to terminate Ujlaky’s
appointment as appellate counsel. Although we do not have Pirkel’s letter in return, Pirkel
appears to have responded to Ujlaky’s letter raising several issues, including withdrawing his
plea and ineffective assistance of counsel. Ujlaky responded, “[Y]ou totally lost me about
withdrawing your plea, to wit: . . . ineffective assistance of counsel.” Ujlaky then filed a motion
to withdraw with the trial court. In the motion, Ujlaky stated that he had made a full review of
the transcripts and other pertinent documents in the case; that he had regularly corresponded with
Pirkel; that he communicated with Pirkel’s trial counsel, Howard Bush; and that he had provided
advice to Pirkel. Ujlaky declared that he “was unable to find, ascertain, or locate any meritorious
issue, a colorable issue, or an arguably valid issue to pursue.” He noted that “Pirkel’s No
Contest Plea and Sentence were both procedurally and substantively correct and proper.”

       The trial judge, who had also presided over Pirkel’s plea and sentencing, held a hearing
on Ujlaky’s motion on June 30, 2008. Ujlaky reiterated the same things that he said in his
motion. The court then asked if Pirkel had anything to add, and Pirkel asked if the court had
received his letters. In one of the letters, Pirkel complained about Ujlaky’s representation:

       Mr. John Ujlaky . . . has failed to cooperate with Defendant and to give proper
       recommendations. . . . Within a month of being appointed as counsel, Mr. Ujlaky
       has shown a reluctance to allow Defendant time to research any possible issues
       and give copies of all transcripts. Counsel has failed to give any helpful
       advice. . . . Defendant has found issues pertaining to but not limited to major
       errors in the plea proceeding[,] [a]long with ineffective assistance of counsel . . . .
       I ask this court to dismiss this attorney and appoint new counsel.

Ujlaky explained that he had not yet given Pirkel the transcripts but planned to when he finished
representing Pirkel. Ujlaky also addressed Pirkel’s concerns about ineffective assistance of
counsel:

       Well, just with regard to ineffective assistance of trial counsel. This was a freely,
       voluntarily given plea by Mr. Pirkel, as appears on the record. I don’t find
 No. 19-1349                            Pirkel v. Burton                                    Page 6


       anything off record because, as I understand the circumstances, Mr. Pirkel was
       reluctant to go to trial on the [sexual misconduct charges] that [were] ultimately
       dismissed.
       ...
       Also, Mr. Pirkel went to the Forensic Center, both for the ability to stand trial
       and—and also with regard to criminal responsibility. He was found mentally
       capable of standing trial. They found that there—he was capable of being
       criminally responsible.
       In light of the—the requirements that this Court has in taking the plea to make
       sure that it’s freely, knowingly, and voluntarily given, and when a Defendant
       says, “Yes, it is, Your Honor,” they cannot come back later pursuant to court rule.
       And case interpretations that say freely, voluntarily given you can’t come back at
       a later date and attack the plea.

At that point, Pirkel interrupted and said, “For that reason—for ineffective assistance of counsel,
you can.” Neither the court nor Ujlaky responded to Pirkel. Instead, the trial court immediately
announced its ruling: “Mr. Ujlaky is asking to withdraw so I’ll grant his request to withdraw.”
The trial court also declined “to appoint a new attorney.” The court explained that its “only
obligation is to appoint one attorney for appellate review in a plea case. I don’t have to appoint
another attorney, especially after the first one has found no grounds for appeal.” The trial court
also entered a written order allowing Ujlaky to withdraw without elaborating on its ruling.

       Pirkel then filed another motion for appointment of appellate counsel, but the trial court
denied the motion. Again, Pirkel argued that Ujlaky failed to raise his ineffective assistance of
trial counsel claim, but the trial court dismissed this argument again, reasoning that Ujlaky’s
“review of the record indicated that Mr. Pirkel was fully advised of his trial rights that he was not
threatened or promised anything more then [sic] the plea agreement and that all procedures were
followed during the sentencing.” The court then reiterated that it “is obligated to appoint one
counsel for appellate reasons; there is no obligation to appoint successor counsel when the first
does not find any appealable issues.”

State Court Appeals

       Pirkel then filed a delayed pro se appeal. First, he argued that his trial counsel, Bush, was
ineffective for failing to investigate whether his confession was voluntary, failing to investigate a
possible defense to the assault with intent to murder charges, and failing to properly advise Pirkel
 No. 19-1349                            Pirkel v. Burton                                   Page 7


that he would be waiving his right to appeal these issues. As a part of these claims, Pirkel stated
that he told Bush that he did not remember making a confession, but Bush did not respond and
only glared at him. Pirkel also claimed that he did not remember receiving medical attention or
Miranda warnings before being interrogated and confessing.

       Next, Pirkel argued that his appellate counsel, Ujlaky, was ineffective for failing to raise
an ineffective assistance of counsel claim and for improperly withdrawing from the case.
Finally, he argued that the trial court violated the Constitution by refusing to appoint new
appellate counsel after Ujlaky withdrew.

       The Michigan Court of Appeals denied leave to appeal “for lack of merit in the grounds
presented.”

       Pirkel then appealed to the Supreme Court of Michigan. Again, Pirkel argued that his
trial counsel was ineffective for failing to investigate the voluntariness of his confession and for
failing to explain that he would waive his right to challenge the confession by pleading no
contest. He also argued that his appellate counsel, Ujlaky, was ineffective for the same reasons
that he argued before the court of appeals. Finally, Pirkel again argued that the trial court
violated the Constitution for failing to appoint new counsel after Ujlaky withdrew. The Supreme
Court of Michigan declined to hear the appeal because it was “not persuaded that the questions
presented should be reviewed by the Court.”

Habeas Petition

       Pirkel filed a habeas petition before the district court on March 2, 2011. He moved for an
evidentiary hearing and appointment of counsel, but the magistrate judge denied those motions.
In his pro se habeas petition, Pirkel raised similar claims to those he had raised in his direct
appeals. In response, the government agreed that Pirkel had “raised the instant claims on direct
appeal and, therefore, exhausted his state remedies.” The magistrate judge, however, raised the
exhaustion issue sua sponte.

       As relevant to this appeal, the magistrate judge found that Pirkel failed to exhaust several
claims: (1) the motion for withdrawal of appellate counsel was unfair because Pirkel’s counsel
 No. 19-1349                             Pirkel v. Burton                                   Page 8


did not represent his interests; (2) the trial court acted unfairly because it did not require Ujlaky
to advocate on behalf of Pirkel; (3) the trial court abused its discretion by failing to appoint new
appellate counsel; and (4) the Michigan Court of Appeals abused its discretion when it failed to
appoint new appellate counsel.

       Rather than dismissing Pirkel’s habeas petition, the magistrate judge held the case in
abeyance to give Pirkel an opportunity to exhaust these claims or amend his petition and drop the
unexhausted claims. Pirkel asked the magistrate judge to waive the exhaustion requirement, or,
alternatively, to proceed only with his exhausted claims. In response, the magistrate judge
dismissed the unexhausted claims and allowed Pirkel to proceed on the exhausted claims. Pirkel
also filed an objection in the district court based on the magistrate judge’s decision, arguing that
he had exhausted these claims and that the magistrate judge abused his discretion by raising
exhaustion sua sponte even though the government had waived exhaustion. The district court
overruled the objections, finding that the magistrate judge had “applied the appropriate law of
exhaustion to the facts of this habeas case.”

       The magistrate judge then made a report and recommendation on the claims that he
determined that Pirkel had exhausted. The magistrate judge found that Pirkel exhausted the
following arguments related to his claims that the Michigan courts violated his constitutional
right to counsel on appeal: (1) the trial court allowed Ujlaky to withdraw without filing a proper
brief; (2) the trial court did not have an adequate basis for determining that there were no
arguable issues on appeal before allowing Ujlaky to withdraw; and (3) the trial court violated
Pirkel’s Fourteenth Amendment rights by adjudicating the deficient motion to withdraw. Again,
the magistrate judge recommended denying Pirkel relief on these grounds, finding that the trial
court “had adequate grounds to allow Ujlaky’s withdrawal.”

       Pirkel filed objections to the magistrate judge’s report and recommendation. Although
the objections were filed late, the district court accepted them and then performed a de novo
review of the report and recommendation. The district court overruled the objections and
adopted the magistrate’s report and recommendation. The district court dismissed the claims and
denied Pirkel a certificate of appealability (COA).
 No. 19-1349                                  Pirkel v. Burton                                           Page 9


Certificate of Appealability

        Pirkel then filed an application for a COA and for appointment of counsel from this
Court. The Court granted the motion, appointed counsel, and allowed Pirkel to proceed on the
following claims: (1) whether his plea was rendered involuntary by ineffective assistance of trial
counsel; (2) whether appellate counsel performed ineffectively by failing to raise this claim of
ineffective assistance of trial counsel; (3) whether the trial court violated Pirkel’s constitutional
rights by allowing appellate counsel to withdraw without arguing any issues on Pirkel’s behalf
and by failing to appoint replacement counsel; (4) whether the respondent waived any exhaustion
defense; and (5) whether Pirkel was entitled to an evidentiary hearing.

                                                       II.

        In reviewing a district court’s decision to dismiss a habeas petition, we typically review
its legal conclusions de novo and its factual findings for clear error. Fleming v. Metrish, 556
F.3d 520, 524 (6th Cir. 2009). “However, where, as here, the district court does not itself
conduct an evidentiary hearing and relies instead exclusively on the state-court record, we review
the district court’s factual findings de novo.” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d
450, 460 (6th Cir. 2015) (per curiam). The district court’s decision to raise exhaustion sua
sponte is reviewed for an abuse of discretion. See Day v. McDonough, 547 U.S. 198, 210
(2006); Granberry v. Greer, 481 U.S. 129, 134-36 (1987). But we review the underlying
exhaustion issue de novo. Satterlee v. Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006).

        The standard to be applied by the district court, however, is very deferential because
Pirkel’s habeas claims are reviewed pursuant to the Antiterrorism and Effective Death Penalty
Act (AEDPA).1 Under AEDPA,

        a federal court may not grant a writ of habeas to a petitioner in state custody with
        respect to any claim adjudicated on the merits in state court unless (1) the state
        court’s decision “was contrary to, or involved an unreasonable application of,
        clearly established Federal law, as determined by the Supreme Court” or (2) the


        1Pirkel’s  motion for leave to appeal was denied by the Michigan Court of Appeals “for lack of merit in the
grounds presented,” which is an adjudication on the merits subject to AEDPA. See Werth v. Bell, 692 F.3d 486,
491, 494 (6th Cir. 2012).
 No. 19-1349                            Pirkel v. Burton                                  Page 10


       state court’s decision “was based on an unreasonable determination of the facts in
       light of the evidence presented in the State court proceedings.”

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (citation omitted) (quoting 28 U.S.C.
§ 2254(d)). “Only when fair-minded jurists could not disagree that a state court’s merits decision
conflicts with Supreme Court precedent may a federal court issue a writ of habeas corpus.”
Barton, 786 F.3d at 460. When the state court does not adjudicate the issues on the merits, then
AEDPA deference does not apply. Id. When state appellate courts have not given reasons for
their decisions on the merits, then we ‘“look through’ the unexplained decision to the last related
state-court decision that does provide a relevant rationale . . . [and] presume that the unexplained
decision adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

                                                III.

       On appeal, Pirkel argues that the Michigan courts violated his constitutional rights by
depriving him of counsel on direct appeal.         Initially, we address exhaustion because the
magistrate judge erred in finding that Pirkel failed to exhaust part of this claim. Meanwhile,
Supreme Court case law makes it clear that certain procedures are constitutionally required
before depriving an indigent defendant of his right to counsel on first-tier review of a criminal
conviction.    Here, the State of Michigan’s procedures were clearly invalid under existing
Supreme Court precedent. Because those procedures are invalid, Pirkel was left without counsel
on appeal, and we, therefore, presume that Pirkel has suffered prejudice. Accordingly, Pirkel is
entitled to a new appeal in the State of Michigan that complies with the Fourteenth Amendment
of the U.S. Constitution.

       A. Exhaustion

       Initially, we address exhaustion, as the magistrate judge and district court judge both
found that Pirkel had failed to exhaust part of his deprivation-of-counsel claim. We review the
substance of the lower court’s decision de novo, as previously discussed in Section II. Among
other claims, the magistrate judge found that Pirkel failed to raise his claim that “the trial judge
abused his discretion when he failed [to] appoint new counsel to represent petitioner in his first-
tier review of his conviction contrary to Halbert[v. Michigan], 545 U.S. 605 [(2005)],” before
 No. 19-1349                                   Pirkel v. Burton                                           Page 11


both the Michigan Court of Appeals and Supreme Court of Michigan. Pirkel objected, and the
district court adopted the magistrate judge’s recommendation to dismiss the unexhausted claims.

         Both parties, however, now agree that the district court and magistrate judge were
mistaken. The parties are correct. Before the Michigan Court of Appeals, Pirkel explicitly
stated, in the heading of his brief, that “the trial court abused it’s [sic] discretion and violate[d]
the federal Constitution’s Sixth and Fourteenth Amendments by refusing to appoint new
appellate counsel to assist Defendant in persuing [sic] his first-tier review.” Further, Pirkel even
cited Halbert in the body of his brief. Before the Supreme Court of Michigan, he also argued
that the trial court violated his constitutional rights by failing to appoint new counsel. He even
noted that this was the trial court’s “most significant” error.

         Thus, Pirkel did not fail to exhaust this claim, and we will review his claim.2




         2Pirkel also asks us to find that the magistrate judge abused his discretion in raising the exhaustion issue
sua sponte. We need not reach this decision, but we note that we are troubled with the process that the magistrate
judge used in this case. First, the magistrate judge, relying on pre-AEDPA case law, found that “the district court
can and must raise the exhaustion issue sua sponte.” As previously discussed in Section II, however, the Supreme
Court has said otherwise. See Granberry, 481 U.S. at 133; cf. Day, 547 U.S. at 209.
          We also have other concerns, especially as to whether the Respondent deliberately waived its exhaustion
defense here. See Wood v. Milyard, 566 U.S. 463, 466 (2012) (holding that it is an abuse of discretion for the court
to raise a defense deliberately waived by the state). Here, Respondent made a statement regarding exhaustion in
their response to Pirkel’s habeas petition, stating that Pirkel “raised the instant claims on direct appeal and,
therefore, exhausted his state remedies.” We have stated that there are no “magic words” for waiver, and we ask
whether the party “intentionally gave up [his] right to raise exhaustion.” D’Ambrosio v. Bagley, 527 F.3d 489, 497
(6th Cir. 2008). Meanwhile, other circuits have held that a state’s concession of exhaustion before the district court
is an express waiver of the exhaustion requirement under § 2254(b)(3). Sharrief v. Cathel, 574 F.3d 225, 229 (3d
Cir. 2009); accord Pike v. Guarino, 492 F.3d 61, 71-73 (1st Cir. 2007) (finding that the state waived its exhaustion
defense when it stated that it believed that the petitioner was correct in her assertion that the claims had been
exhausted); Kerns v. Ault, 408 F.3d 447, 449 n.3 (8th Cir. 2005) (finding that the government waived its exhaustion
defense when it incorrectly stated in its briefing before the district court that it had previously conceded the
exhaustion issue); Dorsey v. Chapman, 262 F.3d 1181, 1187 (11th Cir. 2001) (finding that the state waived the
exhaustion defense when it “expressly declined to raise this defense,” even if that decision was based on an incorrect
belief); Bledsue v. Johnson, 188 F.3d 250, 254 (5th Cir. 1999) (finding that the state waived its exhaustion argument
when it stated that the petitioner “ha[d] sufficiently exhausted his state remedies as required”).
         The magistrate judge also did not consider the interests of comity and federalism. See Granberry, 481 U.S.
at 134. Finally, we have concerns about whether the magistrate judge gave Pirkel fair notice and opportunity to
present his position on the exhaustion issue. Day, 547 U.S. at 210.
 No. 19-1349                            Pirkel v. Burton                                 Page 12


       B. Right to Appellate Counsel and Constitutional Procedure for Withdrawal

       There is no question that the Constitution required the State of Michigan to appoint
appellate counsel to Pirkel. 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.”
545 U.S. at 610.      In reaching its decision, the Supreme Court noted the difficulties of
“[n]avigating the appellate process without a lawyer’s assistance” and how Michigan’s appellate
process can “intimidate the uncounseled.” Id. at 621-22. Citing Anders v. California, 386 U.S.
738, 744 (1967), the Court noted that “when a defendant’s case presents no genuinely arguable
issue, appointed counsel may so inform the court.” Halbert, 545 U.S. at 623.

       Before discussing Anders, we first address several cases leading to that decision. In Ellis
v. United States, 356 U.S. 674, 675 (1958), the Supreme Court stated that “allowance of an
appeal should not be denied until an indigent has had adequate representation by counsel.” The
Supreme Court began sketching an outline for what an attorney and court must do before an
attorney is allowed to withdraw: a “conscientious investigation” by counsel; the court’s
satisfaction that the attorney made a diligent investigation of the possible grounds of appeal; and
the court’s agreement with counsel’s evaluation of the case. Id.

       Next, in Douglas v. California, 372 U.S. 353, 354-55 (1963), the Supreme Court
examined California’s procedure for appointing counsel to indigent defendants, under which the
California courts of appeal would go through the record and determine whether counsel would be
helpful to the defendant or the court. If the court decided that counsel would “be of no value,”
then the indigent defendant was left without counsel. Id. at 355. The Supreme Court struck
down this practice, reasoning that “where the merits of the one and only appeal an indigent has
as of right are decided without benefit of counsel, we think an unconstitutional line has been
drawn between rich and poor.” Id. at 357 (emphasis added). The Court concluded,

       There is lacking that equality demanded by the Fourteenth Amendment where the
       rich man, who appeals as of right, enjoys the benefit of counsel’s examination
       into the record, research of the law, and marshalling of arguments on his behalf,
       while the indigent, already burdened by a preliminary determination that his case
       is without merit, is forced to shift for himself. The indigent, where the record is
 No. 19-1349                             Pirkel v. Burton                                 Page 13


       unclear or the errors are hidden, has only the right to a meaningless ritual, while
       the rich man has a meaningful appeal.

Id. at 357-58.

       Then, in Swenson v. Bosler, 386 U.S. 258, 259 (1967), the Supreme Court examined
Missouri’s procedure, which allowed appellate attorneys to withdraw if they filed a motion for
new trial and notice of appeal. Even though a motion for new trial in Missouri required attorneys
to set forth any grounds for relief, the Supreme Court found the practice unconstitutional. Id. at
258-59.   The Court reasoned that “[t]he assistance of appellate counsel in preparing and
submitting a brief to the appellate court which defines the legal principles upon which the claims
of error are based and which designates and interprets the relevant portions of the trial transcript
may well be of substantial benefit to the defendant.” Id. at 259. The Court concluded, “This
advantage may not be denied to a criminal defendant, solely because of his indigency, on the
only appeal which the State affords him as a matter of right.” Id.

       In its seminal case Anders v. California, the Supreme Court examined counsel’s
withdrawal after sending a short letter to the court, stating that he would not file a brief because
he believed there was no merit to the appeal. 386 U.S. at 742. In the letter, counsel also advised
that he had visited and communicated his views to Anders. Id. The Supreme Court found this
procedure improper and then laid out the proper procedure: (1) counsel may request permission
to withdraw after a conscientious examination of the case if she finds the case “wholly
frivolous,” but counsel must file a brief alongside that request referring to anything in the record
that might arguably support the appeal; (2) the defendant must be provided with counsel’s brief
and allowed time to raise any points he chooses to; and (3) the court must then do its own
investigation to determine whether the case is “wholly frivolous.” Id. at 744. The Court stated
that this procedure “will assure penniless defendants the same rights and opportunities on
appeal—as nearly as is practicable—as are enjoyed by those persons who are in a similar
situation but who are able to afford the retention of private counsel.” Id. at 745.

       In McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429 (1988), the Supreme
Court examined Wisconsin’s rule for allowing counsel to withdraw. In addition to the Anders
requirements, Wisconsin also required its attorneys to include in their briefs to the appellate
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court “a discussion of why the issue lacks merit.” Id. at 430 (quoting Wis. R. App. P. 809.32). In
McCoy, the defendant’s attorney argued that this requirement was unconstitutional because it
would “be both unethical and contrary to Anders to discuss the reasons why the appeal lacked
merit.” Id. at 432. The Supreme Court rejected this argument, explaining that “the central
teaching of Anders” is that counsel must determine that the appeal is “wholly frivolous” after
“master[ing] the trial record, thoroughly research[ing] the law, and exercis[ing] judgment in
identifying the arguments that may be advanced on appeal.” Id. at 438-39. The Court explained
that both the attorney and the court must determine that “the appeal lacks any basis in law or
fact.” Id. at 438 n.10. The Court also discussed counsel’s duty to file a “brief referring to
anything in the record that might arguably support the appeal.” Id. at 439 (quoting Anders,
386 U.S. at 744). The Court explained the importance of this requirement:

       That requirement was designed to provide the appellate courts with a basis for
       determining whether appointed counsel have fully performed their duty to support
       their clients’ appeals to the best of their ability. The Anders requirement assures
       that indigent defendants have the benefit of what wealthy defendants are able to
       acquire by purchase—a diligent and thorough review of the record and an
       identification of any arguable issues revealed by that review. Thus, the Anders
       brief assists the court in making the critical determination whether the appeal is
       indeed so frivolous that counsel should be permitted to withdraw.

Id. (footnotes omitted). Ultimately, the Supreme Court concluded that Wisconsin’s requirement
did not offend the Constitution. Id. at 444.

       The Supreme Court examined the issue again in Penson v. Ohio, 488 U.S. 75 (1988). In
Penson, the defendant’s appellate attorney filed “a conclusory statement” that the case had no
merit and then requested to withdraw. Id. at 78. The Ohio Court of Appeals then allowed
counsel to withdraw and stated that it would later independently review the record to determine
whether any error existed.     Id.   The Supreme Court held that this procedure violated the
Constitution for two reasons: “First, the motion should have been denied because counsel’s
[conclusory statement] failed to draw attention to ‘anything in the record that might arguably
support the appeal[;]’” and second, “the Court of Appeals should not have acted on the motion to
withdraw before it made its own examination of the record to determine whether counsel’s
 No. 19-1349                             Pirkel v. Burton                                   Page 15


evaluation of the case was sound.” Id. at 81-83 (quoting Anders, 386 US. at 744). The Court
explained that these requirements had been discussed at length in Anders, Ellis, and McCoy. Id.

        Finally, in Smith v. Robbins, 528 U.S. 259 (2000), the Supreme Court synthesized this
line of cases while examining California’s new procedure for allowing withdrawal.                  In
California, an appellate attorney who concluded that an appeal would be frivolous was required
to file a brief summarizing the procedural and factual history of the case with citations to the
record. Id. at 265. The attorney had to also attest that he reviewed the record, explained his
evaluation of the case to the client, provided the brief to the client, and informed the client of his
right to file a pro se brief. Id. The attorney was also required to ask the appellate court to
independently review the record for arguable issues and express his availability to brief any
issues on request from the court.       Id.   The appellate court then had to conduct its own
independent review of the record. Id. If the court determined that the appeal was frivolous, it
could affirm; otherwise, it could order briefing on whatever nonfrivolous issues it discovered.
Id. at 266.

        In deciding whether this rule was constitutional, the Supreme Court first clarified that the
procedure from Anders is “prophylactic,” and “the States are free to adopt different procedures,
so long as those procedures adequately safeguard a defendant’s right to appellate counsel.” Id. at
265. The Court explained that the Equal Protection and Due Process clauses of the Fourteenth
Amendment “require that a State’s procedure ‘affor[d] adequate and effective appellate review to
indigent defendants.’” Id. at 276 (alteration in original) (quoting Griffin v. Illinois, 351 U.S. 12,
20 (1956)). The procedure must “reasonably ensure that an indigent’s appeal will be resolved in
a way that is related to the merit of that appeal.” Id. at 276-77.

        The Supreme Court then explained the requirements necessary to ensure compliance with
the Constitution. First, the Court noted that the State’s process must “ensure that those indigents
whose appeals are not frivolous receive the counsel and merits brief required by Douglas.” Id. at
277. Next, the Court explained that a state may not “allow[] counsel to withdraw before the
court ha[s] determined whether counsel’s evaluation of the case was accurate.” Id. at 280 (citing
Penson, 488 U.S. at 82-83). Forgoing this key step is “a basic violation of the Douglas right to
have counsel until a case is determined to be frivolous and to receive a merits brief for a
 No. 19-1349                              Pirkel v. Burton                                 Page 16


nonfrivolous appeal.”      Id.   “[A] one-paragraph letter from counsel stating only his ‘bare
conclusion’ that the appeal ha[s] no merit” is insufficient. Id. at 280-81. Finally, the court noted
that providing only one tier of review before allowing counsel to withdraw is a procedural flaw.
Id. at 281.

          The court reasoned that California’s procedure did not suffer from these flaws and overall
afforded “adequate and effective appellate review for criminal indigents.” Id. at 284.

          C. The Procedure Used by the Trial Court Violates the Constitution

          In this case, the procedure used by the trial court and Pirkel’s attorney did not “affor[d]
adequate and effective appellate review to” Pirkel. Id. at 276 (alteration in original) (quoting
Griffin, 351 U.S. at 20). The procedure suffered from almost every defect that the Supreme
Court has repeatedly warned is constitutionally inadequate.

          First, and most fundamentally, the Michigan procedure failed to provide two-tier review.
Smith, 528 U.S. at 281. Essential to all of the Anders-like procedures that have been upheld by
the Supreme Court was a determination whether there were appealable issues by the appellate
court, not the very court appealed from.           However, in this case, the trial court, “who
understandably had little incentive to find any error warranting an appeal,” id., was the same
court who decided to allow Ujlaky to withdraw and refused to provide replacement counsel.

          Next, Ujlaky failed to file a brief drawing attention to anything in the record that might
arguably support Pirkel’s appeal. Penson, 488 U.S. at 81; McCoy, 486 U.S. at 439; Anders, 386
U.S. at 744. Instead, in his motion, Ujlaky merely asserted that he could not find any meritorious
issues and failed to point to any issues in the record or provide Pirkel any basis for his pro se
appeal.

          Finally, the trial court failed to conduct an independent determination of the merits of
Pirkel’s appeal. Smith, 528 U.S. at 279-80; Penson, 488 U.S. at 82-83; McCoy, 486 U.S. at 438
n.10, 439; Anders, 386 U.S. at 744; Ellis, 356 U.S. at 675. In fact, the trial court never made any
determination of the merits of Pirkel’s appeal, relying instead on Ujlaky’s determination.
Further, even after Pirkel requested the appointment of new appellate counsel, the court merely
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reiterated that Ujlaky’s “review of the record indicated that Mr. Pirkel was fully advised of his
trial rights that he was not threatened or promised anything more then [sic] the plea agreement
and that all procedures were followed during the sentencing.” At no point did the court ever say
that it conducted its own investigation to determine whether Pirkel’s appeal had merit.

       With these flawed procedures, it is clear that Pirkel did not “receive adequate and
effective appellate review.” Smith, 528 U.S. at 284.

       Further, the Michigan Courts, in deciding otherwise, reached a decision that “was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Fair-minded jurists could not
disagree that the Michigan decisions conflict with Supreme Court precedent. See Barton, 786
F.3d at 460. Respondent essentially concedes this point by not even attempting to argue that the
procedure used by the Michigan courts was valid. Accordingly, we conclude that, even under
AEDPA deference, the Michigan courts erred in denying Pirkel the protections required by the
Constitution.

       Finally, we presume prejudice because Pirkel was effectively denied counsel on appeal.
When a defendant is left without counsel on appeal, it is “inappropriate to apply either the
prejudice requirement of Strickland [v. Washington, 466 U.S. 668 (1984),] or the harmless-error
analysis of Chapman [v. California, 386 U.S. 18 (1967)].” Penson, 488 U.S. at 88-89; see also
Smith, 528 U.S. at 286 (“[W]hile we normally apply ‘a strong presumption of reliability’ to
judicial proceedings and require a defendant to overcome that presumption, when, as in Penson,
there has been a complete denial of counsel, we understandably presume the opposite.” (citation
omitted) (quoting Strickland, 466 U.S. at 692, 696)). In Hughes v. Booker, 220 F.3d 346 (5th
Cir. 2000), a case involving another constitutionally inadequate procedure for withdrawal of
appellate counsel, the Fifth Circuit reasoned that “once we determine that a defendant has been
constructively denied appellate counsel—as we have here—‘any discussion even flirting with the
language of Strickland’s prejudice or harmless error analysis is unnecessary.’”           Id. at 353
(quoting Lombard v. Lynaugh, 868 F.2d 1475, 1487 (5th Cir. 1989) (Goldberg, J., specially
concurring)). The Fifth Circuit explained that “[i]t is not the role of [federal appellate courts] to
scour the record—unassisted by an Anders brief, any explanation of why the appeal is frivolous
 No. 19-1349                                     Pirkel v. Burton                                            Page 18


by appellate counsel, or a state court ruling—in an effort to identify nonfrivolous appellate
issues.” Id. Here, the same is true, and we, therefore, presume prejudice.

                                                          IV.

         Because Pirkel was denied counsel on appeal through unconstitutional procedures, and
presuming prejudice, we find that Pirkel is entitled to a new appeal before the Michigan Court of
Appeals that complies with the constitutional demands announced in Ellis, Anders, Douglas,
McCoy, Penson, and Smith. On remand, the district court shall issue a conditional writ of habeas
corpus, ordering Pirkel’s release if the State of Michigan does not grant him a new state court
appeal with the constitutional protections specified in this opinion within a time to be determined
by the district court.3

         For the foregoing reasons, we REVERSE and REMAND.




         3Having    found that Pirkel is entitled to a new first-tier appeal, we need not address his other arguments, as
we will allow the Michigan courts to first entertain Pirkel’s ineffective assistance of trial counsel claim with the
benefit of the constitutional protections required. We will also allow the Michigan court to determine whether
Pirkel is entitled to an evidentiary hearing. Finally, we need not address Pirkel’s additional exhaustion arguments
because they are now moot.
