Today the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel decision in a habeas case. In Simmons v. Kapture, Patrick Simmons filed a petition for a writ of habeas corpus to challenge his guilty plea for "assault with intent to do great bodily harm less than murder" in Michigan state court. According to Simmons, his plea was not knowing and voluntary and he denied effective assistance f counsel at the plea stage. Simmons has initially lost his case, but the Supreme Court accepted cert in the case and remanded it to the Sixth Circuit for reconsideration in light of Halbert v. Michigan (2005), under which Simmons may have been entitled to an attorney for his appeal in state court.

Judge Boyce Martin, joined by Judge Martha Daughtrey, held that Halbert applied retroactively to Simmons because it did not announce a new rule of criminal procedure, and instead merely applied prior holdings. Thus, the panel majority concluded, "Simmons is entitled to a writ of habeas corpus based on the state's failure to appoint him appellate counsel forhis motion for leave to appeal his guilty plea."

District Judge Danny Reeves, sitting by designation, dissented on the grounds that the rule in Halbert should not apply retroctrively to Simmons' case because it was a "new rule" of criminal procedure that was not dictated by prior precedent, and because it coul not satisfy either exception to the bar on retroactive application of such a rule.