Simmons v. Kapture

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…