Justice Thomas's notable Booker footnote in Halbert

As detailed here, I had some hope when cert. was granted in Halbert v. Michigan, No. 03-10198 (S. Ct. June 23, 2005) (available here), that sentencing issues might be discussed in conjunction with the High Court's elaboration of the right to counsel.  But the opinions in Halbert ultimately had little sentencing discussion, save for one opaque and curious footnote in the dissent by Justice Thomas. 

In Halbert, the Justices debated not only whether defendants in Michigan had a general constitutional right to counsel when seeking leave to appeal, but also whether the defendant in this Halbert had waived that right.  In the course of responding to assertions by the Halbert majority that the defendant could not waive a right that had not been clearly recognized, Justice Thomas dropped this footnote in his dissent:

FN2. Moreover, the majority's failure to make clear which sources of law are to be considered in deciding whether a right is "no[t] recognized," ante, at 16, and hence nonwaivable, is bound to wreak havoc.  For instance, suppose that a defendant waived the right to appeal his sentence after the regional Court of Appeals had held that the principle of Blakely v. Washington, 542 U.S. 296 (2004), did not apply to the United States Sentencing Guidelines, but before this Court held the contrary in United States v. Booker, 543 U.S. ---- (2005). The defendant could claim that, in his circuit, the Sixth Amendment right against the application of the Guidelines was "no[t] recognized," and hence that the right was nonwaivable.

Though we should all know better than to read too much from a footnote in a dissent, it would seem that Justice Thomas believes the majority's logic in Halbert provides an additional argument for assailing some federal appeal waivers which defendants entered into before Booker.  (Prior coverage of other arguments against federal appeal waivers can be found in posts here and here.)