469 U.S. 387 (1985)
On March 21, 1976, a Kentucky jury convicted respondent David Lucey of trafficking in controlled substances.1 His retained counsel filed a timely notice of appeal to the Kentucky Court of Appeals.2 On September 12, 1977, counsel filed the record on appeal and a brief but omitted the statement of appeal required by Kentucky Rule of Appellate Procedure 1.095(a)(1), which calls for names of parties and counsel, the trial judge, dates of judgment and notice of appeal, and other specified information.3
The Commonwealth moved to dismiss the appeal for failure to file the statement.4 The Court of Appeals granted the motion.5 Respondent moved for reconsideration, tendering a compliant statement of appeal and arguing that the required information appeared in his brief; the court denied reconsideration.6 The Kentucky Supreme Court affirmed in a one-sentence order.7 Respondent then asked the trial court to vacate the judgment or grant a belated appeal; that motion was denied.8
Respondent petitioned for federal habeas corpus relief in the United States District Court for the Eastern District of Kentucky, claiming that dismissal of his appeal because of counsel's procedural default deprived him of effective assistance of counsel.9 The District Court granted a conditional writ ordering release unless the Commonwealth reinstated the appeal or retried him.10 On appeal, the Sixth Circuit remanded for consideration of an equal-protection claim.11 On remand the parties stipulated that no equal-protection issue existed and that the sole question was whether the dismissal violated the Due Process Clause.12 The District Court reissued the conditional writ, and the Sixth Circuit affirmed on January 12, 1984.13
The Supreme Court granted certiorari.14 Respondent had pursued every available state avenue for seven years without obtaining a decision on the merits of his appeal.15 The District Court found that respondent received ineffective assistance of counsel on appeal, a finding petitioners did not contest in the Supreme Court.16
Whether the Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right?17
The Due Process Clause guarantees a criminal defendant the effective assistance of counsel on a first appeal as of right.18 The right to counsel recognized in Douglas v. California would be meaningless without the requirement that counsel provide effective assistance.19 The trial right recognized in Gideon v. Wainwright likewise comprehends effective assistance.20
Yes. On March 21, 1976, a Kentucky jury convicted respondent David Lucey of trafficking in controlled substances.21 His retained counsel filed a timely notice of appeal but omitted the statement of appeal required by Kentucky Rule of Appellate Procedure 1.095(a)(1) when filing the record and brief on September 12, 1977.22 The Court of Appeals dismissed the appeal for noncompliance, the Kentucky Supreme Court affirmed in a one-sentence order, and the trial court denied postconviction relief.23 Respondent then obtained a conditional writ of habeas corpus from the District Court after that court found ineffective assistance of counsel on appeal, a finding petitioners did not contest.24
Because Kentucky had created an appeal as of right, the Due Process Clause required that the appeal proceed with effective assistance.25 Dismissal based on counsel's procedural default therefore violated due process by extinguishing the right to appeal on account of the violation of the right to effective counsel.26
The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right.27
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Joined by Chief Justice Burger
Justice Rehnquist dissented.28 He argued that the Court created a due process right to effective appellate counsel virtually out of whole cloth.29 The precedents it relied upon rested on equal protection for indigents and on the Sixth Amendment trial right.30
Those materials were not equal to the task.31 The Constitution does not require states to provide appeals at all.32 The Sixth Amendment text limits the right to counsel to criminal prosecutions at trial.33
Therefore no derivative right to effective assistance can exist on appeal.34 He further contended that the Due Process Clause does not impose procedural requirements on state appeals beyond barring procedures that give indigents a narrower scope of review than nonindigents.35
Whether a state that provides a system of appeals as of right must operate that system in accordance with the Due Process Clause?36
Yes. Kentucky established an appeal as of right under Section 115 of its Constitution.39 It then dismissed respondent's appeal solely because retained counsel failed to file the statement of appeal required by Rule 1.095(a)(1).40 The District Court found that this failure amounted to ineffective assistance.41 The resulting dismissal deprived respondent of any decision on the merits after seven years of litigation.42
Because the state had created the appellate process as the final step in adjudicating guilt or innocence, due process required that the process afford a fair opportunity to obtain an adjudication on the merits.43 It could not permit extinguishment of the right based on counsel's error.44
A state that provides a system of appeals as of right must operate that system in accordance with the Due Process Clause.45
Whether an appeal to the Kentucky Court of Appeals from a criminal conviction constitutes an appeal as of right or a conditional appeal subject to dismissal for noncompliance with procedural rules?46
An appeal to the Kentucky Court of Appeals from a criminal conviction constitutes an appeal as of right.47 The state constitution guarantees at least one appeal in all cases.48 The decision on the merits is not contingent on a discretionary finding that the case presents significant public or jurisprudential issues.49
Yes. Section 115 of the Kentucky Constitution provides that in all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court.50 Respondent's appeal to the Kentucky Court of Appeals was his first opportunity for review.51 It occurred without a prior transcript or written opinion.52
It was not conditioned on any discretionary determination of public importance.53 The Court of Appeals dismissed the appeal for failure to file the statement of appeal.54 That procedural default did not convert the guaranteed appeal into a conditional one.55 The appeal therefore triggered the right to counsel recognized in Douglas v. California.56
An appeal to the Kentucky Court of Appeals from a criminal conviction constitutes an appeal as of right.
Whether the Due Process Clause or the Equal Protection Clause supplies the constitutional basis for requirements governing the conduct of criminal appeals as of right?57
Both the Due Process Clause and the Equal Protection Clause supply the constitutional basis for requirements governing the conduct of criminal appeals as of right.58 Due process emphasizes fairness between the state and the individual.59 Equal protection addresses disparity in treatment between classes of defendants.60
Yes. The District Court and Sixth Circuit addressed only the due process claim after the parties stipulated that no equal protection issue existed.61 The dismissal of respondent's appeal because of counsel's failure to file the required statement deprived him of a fair opportunity to obtain an adjudication on the merits.62 This implicated due process concerns of arbitrary treatment with respect to the issues involved.63
Although equal protection principles also animated earlier cases involving indigents, the present case demonstrates that due process independently requires effective assistance so that the appeal is not reduced to a meaningless ritual.64
The Due Process Clause supplies an independent constitutional basis for requirements governing the conduct of criminal appeals as of right.65
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Chief Justice Burger dissented from the Court's decision. He joined Justice Rehnquist's dissenting opinion in full. Burger emphasized that few things have so plagued the administration of criminal justice, or contributed more to lowered public confidence in the courts, than the interminable appeals, the retrials, and the lack of finality.
He argued that the Court's ruling adds another barrier to finality and offers no real contribution to fairer justice. By creating a new due process right to effective assistance of counsel on appeal, the majority further erodes the finality of criminal convictions without advancing the cause of justice.66