evitts lucey argued october decided january respondent convicted drug offense kentucky state retained counsel filed timely notice appeal kentucky appeals counsel failed file statement appeal required kentucky rule appellate procedure filed brief record appeal appeals dismissed appeal later denied motion reconsideration kentucky affirmed trial denied motion vacate conviction grant belated appeal respondent sought habeas corpus relief federal district challenging dismissal appeal ground deprived right effective assistance counsel appeal guaranteed due process clause fourteenth amendment district granted conditional writ habeas corpus ordering respondent release unless commonwealth either reinstated appeal retried appeals affirmed held due process clause fourteenth amendment guarantees criminal defendant effective assistance counsel first appeal right pp nominal representation appeal right like nominal representation trial suffice render proceedings constitutionally adequate party whose counsel unable provide effective representation better position one counsel first appeal right therefore adjudicated accord due process law appellant effective assistance attorney promise douglas california criminal defendant right counsel first appeal right like promise gideon wainwright criminal defendant right counsel trial futile gesture unless comprehended right effective assistance counsel pp state opts act field action significant discretionary elements establishes system appeals right although required must nonetheless act accord dictates constitution particular accord due process clause pp reasonable interpretation line drawn ross moffitt discretionary appeals criminal defendant right counsel appeals right criminal defendant appeal conviction kentucky appeals appeal right kentucky constitution requires least one appeal right allowed cases civil criminal criminal defendant appealing kentucky appeals previously adequate opportunity present claims fairly context state appellate process follows purposes analysis due process clause respondent appeal appeal right thus triggering right counsel recognized douglas california supra pp petitioners argument due process clause bearing commonwealth actions case constitutional requirements recognized griffin illinois transcript trial prerequisite decision merits appeal douglas california supra cases followed source equal protection clause due process clause rests misunderstanding diverse sources holdings area law due process equal protection concerns implicated griffin douglas clauses supported decisions pp brennan delivered opinion white marshall blackmun powell stevens joined burger filed dissenting opinion post rehnquist filed dissenting opinion burger joined post gerald henry assistant attorney general kentucky argued cause petitioners briefs david armstrong attorney general paul reilender assistant attorney general william radigan argued cause filed brief respondent justice brennan delivered opinion douglas california held fourteenth amendment guarantees criminal defendant right counsel first appeal right case must decide whether due process clause fourteenth amendment guarantees criminal defendant effective assistance counsel appeal march kentucky jury found respondent guilty trafficking controlled substances retained counsel filed timely notice appeal appeals kentucky state intermediate appellate kentucky rule appellate procedure required appellants serve appellate record appeal statement appeal contain names appellants appellees counsel trial judge date judgment date notice appeal additional information see england spalding rule designed assist processing records compliance jurisdictional respondent counsel failed file statement appeal filed brief record appeal september commonwealth filed brief included motion dismiss appeal failure file statement appeal appeals granted motion appellant failed supply information required rap app respondent moved reconsideration arguing information necessary statement appeal fact included brief albeit somewhat different format time respondent tendered statement appeal formally complied commonwealth rules appeals summarily denied motion reconsideration respondent sought discretionary review kentucky judgment appeals affirmed order final effort gain state appellate review conviction respondent moved trial vacate judgment grant belated appeal trial denied motion respondent sought federal habeas corpus relief district eastern district kentucky challenged constitutionality commonwealth dismissal appeal lawyer failure file statement appeal ground dismissal deprived right effective assistance counsel appeal guaranteed fourteenth amendment district granted respondent conditional writ habeas corpus ordering release unless commonwealth either reinstated appeal retired commonwealth appealed appeals sixth circuit reached decision merits instead remanded case district determination whether respondent claim equal protection clause lucey seabold remand counsel parties stipulated equal protection issue case issue whether state action dismissing respondent appeal violated due process clause district thereupon reissued conditional writ habeas corpus january appeals sixth circuit affirmed judgment district lucey kavanaugh granted petition certiorari affirm ii respondent past seven years unsuccessfully pursued every avenue open effort obtain decision merits appeal prove conviction unlawful kentucky appellate courts refusal hear merits claim stem view merits respondent argue courts constitutionally required render judgment appeal favor rather issue must decide whether state dismissal appeal despite ineffective assistance respondent counsel appeal violates due process clause fourteenth amendment analyzing merits respondent contention appropriate emphasize two limits scope question presented first challenge district finding respondent indeed received ineffective assistance counsel appeal respondent alleges petitioners deny counsel failure obey simple rule drastic consequences required finding therefore need decide content appropriate standards judging claims ineffective assistance appellate counsel cf strickland washington cronic second stipulation district remand limits inquiry solely validity state action due process clause fourteenth amendment respondent claim arises intersection two lines cases one line held fourteenth amendment guarantees criminal appellant pursuing first appeal right certain minimum safeguards necessary make appeal adequate effective see griffin illinois among safeguards right counsel see douglas california second line held right counsel created sixth amendment applied fourteenth amendment see gideon wainwright comprehends right effective assistance counsel see cuyler sullivan question presented case whether right counsel also comprehends right effective assistance counsel almost century ago held constitution require grant appeals right criminal defendants seeking review alleged trial errors mckane durston nonetheless state created appellate courts integral part system finally adjudicating guilt innocence defendant griffin illinois procedures used deciding appeals must comport demands due process equal protection clauses constitution griffin transcript trial proceedings prerequisite decision merits appeal see held state must provide transcript indigent criminal appellants afford buy one way assure adequate effective appeal see also eskridge washington state board prison terms paroles per curiam invalidating state rule giving free transcripts defendants convince trial judge justice thereby promoted burns ohio invalidating state requirement indigent defendants pay fee filing notice appeal conviction lane brown invalidating procedure whereby meaningful appeal possible public defender requested transcript draper washington invalidating state procedure providing free transcript defendant satisfy trial judge appeal frivolous transcript may rule custom prerequisite appellate review services lawyer virtually every layman necessary present appeal form suitable appellate consideration merits see griffin supra therefore douglas california supra recognized principles griffin required state afforded right appeal make appeal meaningless ritual supplying indigent appellant criminal case attorney right counsel limited first appeal right see ross moffitt attorney need advance every argument regardless merit urged appellant see jones barnes attorney must available assist preparing submitting brief appellate swenson bosler per curiam must play role active advocate rather mere friend assisting detached evaluation appellant claim see anders california see also entsminger iowa gideon wainwright supra held sixth amendment right counsel fundamental essential fair trial due process law made obligatory upon fourteenth amendment quoting betts brady see also powell alabama johnson zerbst gideon rested obvious truth lawyers necessities luxuries adversarial system criminal justice premise adversary system criminal justice partisan advocacy sides case best promote ultimate objective guilty convicted innocent go free herring new york defendant liberty depends ability present case face intricacies law advocacy public prosecutor ash criminal trial thus conducted accord due process law unless defendant counsel represent made clear guarantee counsel satisfied mere formal appointment avery alabama person happens lawyer present trial alongside accused however enough satisfy constitutional command accused entitled assisted attorney whether retained appointed plays role necessary ensure trial fair strickland washington see also mcmann richardson long recognized right counsel right effective assistance counsel cuyler sullivan last term emphasized point clarifying standards used assessing claims trial counsel failed provide effective representation see cronic strickland washington supra right counsel fundamental fair trial constitution tolerate trials counsel though present name unable assist defendant obtain fair decision merits quotation strickland supra makes clear constitutional guarantee effective assistance counsel trial applies every criminal prosecution without regard whether counsel retained appointed see cuyler sullivan supra constitutional mandate addressed action state obtaining criminal conviction procedure fails meet standards due process law unless defendant charged serious offense counsel able invoke procedural substantive safeguards distinguish system justice serious risk injustice infects trial state obtains criminal conviction trial state unconstitutionally deprives defendant liberty cuyler sullivan supra citations omitted two lines cases mentioned cases recognizing right counsel first appeal right cases recognizing right counsel trial includes right effective assistance counsel dispositive respondent claim bringing appeal right conviction criminal defendant attempting demonstrate conviction consequent drastic loss liberty unlawful prosecute appeal criminal appellant must face adversary proceeding like trial governed intricate rules layperson hopelessly forbidding unrepresented appellant like unrepresented defendant trial unable protect vital interests stake sure respondent nominal representation brought appeal nominal representation appeal right like nominal representation trial suffice render proceedings constitutionally adequate party whose counsel unable provide effective representation better position one counsel first appeal right therefore adjudicated accord due process law appellant effective assistance attorney result hardly novel petitioners anders california entsminger iowa claimed although represented name counsel received type assistance constitutionally required render appellate proceedings fair cases agreed petitioners holding counsel failure anders submit brief appeal counsel waiver entsminger petitioner right full transcript rendered subsequent judgments petitioners unconstitutional short promise douglas criminal defendant right counsel appeal like promise gideon criminal defendant right counsel trial futile gesture unless comprehended right effective assistance counsel recognition right effective assistance counsel appeal requires affirm sixth circuit decision case petitioners object holding disable state courts enforcing wide range vital procedural rules governing appeals counsel may according petitioners disobey rules impunity state courts precluded enforcing dismissing appeal petitioners concerns exaggerated lower federal courts many state courts overwhelmingly recognized right effective assistance counsel appeal decisions seem dire consequences ability conduct appeals accordance reasonable procedural rules matter longstanding recognition right effective assistance counsel trial including recognition cuyler sullivan right extended retained well appointed counsel rendered ineffectual perhaps complex procedural rules governing conduct trials see also cronic strickland washington extent state believes procedural rules jeopardy numerous courses remain open example state may certainly enforce vital procedural rule imposing sanctions attorney rather client course may well effective alternative refusing decide merits appeal reduce possibility defendant powerless obey rules serve term years jail unlawful conviction instead state chooses dismiss appeal incompetent attorney violated local rules may action intrude upon client due process rights instance kentucky contexts permitted attack trial judgment appropriate remedy frustrated right appeal hammershoy commonwealth one several solutions state federal courts permitted similar cases system appeal right established precisely assure validly convicted freedom drastically curtailed state may extinguish right another right appellant right effective assistance counsel violated iii petitioners urge reasoning rests faulty premises first petitioners argue commonwealth need establish system appeals right first instance immune constitutional scrutiny chooses system second petitioners deny respondent right counsel appeal kentucky appeals appeal conditional appeal rather appeal right third petitioners argue even commonwealth actions subject constitutional scrutiny even appeal sought appeal right due process clause upon respondent claimed right effective assistance counsel based bearing commonwealth actions case take three arguments turn support first argument petitioners initially rely mckane durston held state need provide system appellate review right see also ross moffitt jones barnes petitioners derive proposition much broader principle whatever state appeal whether appeal operate due process concern constitution brief petitioners follow kentucky action cutting respondent appeal attorney incompetence permissible due process clause right appeal unique among state actions withdrawn without consideration applicable due process norms instance although state may choose whether institute given welfare program must operate whatever programs establish subject protections due process clause see goldberg kelly similarly state great discretion setting policies governing parole decisions must nonetheless make decisions accord due process clause see morrissey brewer see also graham richardson bell burson sherbert verner joint refugee committee mcgrath frankfurter concurring short state opts act field action significant discretionary elements must nonetheless act accord dictates constitution particular accord due process clause petitioners second argument relies holding ross moffitt supra criminal defendant right counsel appeals right discretionary state appeals according petitioners kentucky courts permit criminal appeals condition appellant follow local rules statutes governing appeals see brown commonwealth therefore system establish appeal right conditional appeal subject dismissal state rules violated petitioners conclude respondent appeal right right counsel effective assistance counsel conditional appeal reasonable interpretation line drawn ross discretionary appeals appeals right criminal defendant appeal conviction kentucky appeals appeal right section kentucky constitution provides cases civil criminal shall allowed matter right least one appeal another unlike appellant discretionary appeal ross criminal appellant kentucky appeals typically benefit previously prepared trial transcript brief merits appeal previous written opinion see ross supra addition petitioners fail point source kentucky law indicating decision merits appeal like respondent unlike discretionary appeal ross contingent discretionary finding appeals case involves significant public jurisprudential issues purpose first appeal kentucky system appears precisely determine whether individual defendant lawfully convicted short criminal defendant bringing appeal kentucky appeals previously adequate opportunity present claims fairly context state appellate process see follows purposes analysis due process clause respondent appeal appeal right thus triggering right counsel recognized douglas california finally petitioners argue even due process clause apply manner state conducts system appeals even appeal denied respondent appeal right due process clause nonetheless offended kentucky refusal decide respondent appeal merits clause role play granting criminal appellant right counsel fortiori effective assistance counsel appeal although may seem douglas progeny defeat argument petitioners attempt distinguish cases exploiting seeming ambiguity previous decisions according petitioners constitutional requirements recognized griffin douglas cases followed source equal protection clause due process clause fourteenth amendment support contention petitioners point cases griffin line involved claims indigent defendants right decision merits appeal wealthier defendants able afford lawyers transcripts prerequisites fair adjudication merits petitioners claim cases understood equal protection cases challenging constitutional validity distinction made rich poor criminal defendants petitioners conclude due process clause permits criminal appeals right forfeited appellant transcript attorney surely permits appeals forfeited appellant attorney unable assist prosecuting appeal petitioners argument rests misunderstanding diverse sources holdings area ross moffitt held precise rationale griffin douglas lines cases never explicitly stated support derived equal protection clause fourteenth amendment due process clause amendment accord bearden georgia due process equal protection principles converge analysis cases see also note term harv rev citing cases rather clear statement ross due process clause played significant role prior decisions well supported cases griffin instance state effect dismissed petitioner appeal afford transcript establishing system appeal right state implicitly determined unwilling curtail drastically defendant liberty unless second judicial decisionmaker appellate convinced conviction accord law decided determination important made appeal final step adjudication guilt innocence individual see griffin state effect make available wealthy disposition violated equal protection principles distinguished poor rich respect vital right also violated due process principles decided appeal way arbitrary respect issues involved griffin noted dispensing justice trial level charging defendant privilege pleading guilty make constitutional promise fair trial worthless thing deciding appeal basis obvious constitutionally fatal defect see also douglas supra procedure whereby indigent defendant must demonstrate merit case obtaining counsel appeal comport fair procedure anders california constitutional requirement substantial equality fair process attained counsel acts role active advocate emphasis added decisions anders entsminger iowa jones barnes inconsistent petitioners interpretation noted cases dealt responsibilities attorney representing indigent criminal defendant appeal although reached different result jones reached anders entsminger cases rest premise state must supply indigent criminal appellants attorneys provide specified types assistance appellants right effective assistance counsel petitioners claim rights enjoyed criminal appellants source equal protection clause rights measured rights nonindigent appellants petitioners argument instant case correct nonindigent appellants right effective assistance counsel follow indigent appellants also right effective assistance counsel three cases erred reaching contrary conclusion lesson cases pointed ross supra clause triggers distinct inquiry due process emphasizes fairness state individual dealing state regardless individuals situation may treated equal protection hand emphasizes disparity treatment state classes individuals whose situations arguably indistinguishable cases like griffin douglas due process concerns involved involved set system appeals right refused offer defendant fair opportunity obtain adjudication merits appeal equal protection concerns involved state treated class defendants indigent ones differently purposes offering meaningful appeal concerns implicated griffin douglas cases clauses supported decisions reached affirmed footnotes cases appellant shall file record appeal statement setting forth name appellant appellee name address counsel appellant appellee name address trial judge date judgment appealed entered page record appeal may found date notice appeal filed page record appeal may found following facts true notice cross appeal filed supersedeas bond executed reason appeal advanced suit involving multiple claims judgment made final another appeal pending case involves transaction occurrence common question law fact appeal consolidated giving style case appellant free bond set forth brief petitioners argument headings appellate brief error admit photographs appellant evidence lacked probative value served mislead arouse passion prejudice jury ii trial charge jury failed meet requirements due process law iii appellant denied constitutional right fair trial improper conduct trial prejudicial comments made prosecutor summation app merits none claims us district also referred respondent counsel board governors kentucky state bar association disciplinary proceedings attacking work product see respondent represented counsel commonwealth informed five days prior oral argument respondent finally released custody civil rights including suffrage right hold public office restored may however respondent pardoned collateral consequences conviction remain including possibility conviction used impeach testimony might give future proceeding possibility used subject persistent felony offender prosecution go trial felony charges future case thus moot see carafas lavallee sibron new york seemingly respondent entered stipulation attorney appeal retained appointed cases dealing right counsel whether trial appeal often focused defendant need attorney meet adversary presentation prosecutor see douglas california noting benefit counsel examination record research law marshalling arguments client behalf cases emphasize defendant need counsel order obtain favorable decision facts case emphasize different albeit related aspect counsel role expert professional whose assistance necessary legal system governed complex rules procedures defendant obtain decision much less favorable decision merits case situation like counsel failure particularly egregious essentially waived respondent opportunity make case merits sense difficult distinguish respondent situation someone counsel cf anders california entsminger iowa ross moffitt held considerations governing discretionary appeal somewhat different see infra course right effective assistance counsel dependent right counsel see wainwright torna per curiam since respondent constitutional right counsel deprived effective assistance counsel retained counsel failure file application timely omitted moreover jones barnes adjudicated similar claim ineffective assistance appellate counsel jones appellate attorney failed raise every issue requested criminal defendant rejected claim right effective assistance appellate counsel counsel conduct fact served goal vigorous effective advocacy reasoning entirely superfluous right effective assistance counsel first place see francois wainwright tsirizotakis lefevre cert denied post branch cupp alvord wainwright cert denied post cunningham henderson doyle gilbert sowders per curiam dismissal appeal retained counsel ran afoul highly technical procedural rule violated due process perez wainwright citing cases cert denied robinson wyrick cleaver bordenkircher cert denied sub nom sowders cleaver miller mccarthy passmore estelle cert denied cantrell alabama cert denied walters harris cert denied sub nom wren macon lash hill page performance retained counsel appeal judged standards anders entsminger blanchard brewer dismissal appeal retained counsel failed serve papers properly held violation due process williams see also harkness state ark per curiam people barton cal erb state del hines barclay wainwright mcauliffe rutledge state erwin haw people brown burton state ind wilson state md irving state miss people gonzalez shipman gladden commonwealth wilkerson grooms state savo rhodes leverette cases diverge widely standards used judge ineffectiveness remedy ordered rationale used express opinion merits decisions stahl commonwealth kentucky noted postconviction motion defendant prove counsel ineffective appeal proper procedure trial vacate judgment enter new one whereupon appeal may taken new judgment see also rodriquez ordering similar remedy denial appeal federal prosecution winterhalder per curiam discussing remedies see supra see also bearden georgia went ross analyze issue presented right counsel discretionary appeals primarily terms equal protection clause see however neither ross cases griffin line ever rejected proposition due process clause exerted significant influence analysis area chief justice burger dissenting things plagued administration criminal justice contributed lowered public confidence courts interminable appeals retrials lack finality today justice rehnquist cogently points adds another barrier finality one offers real contribution fairer justice join justice rehnquist dissenting justice rehnquist chief justice joins dissenting case creates virtually whole cloth fourteenth amendment due process right effective assistance counsel appeal criminal conviction materials works previous cases requiring indigents afforded basic tools indigent appealing criminal convictions cases interpreting sixth amendment guarantee assistance counsel criminal trial simply equal task called upon perform relies heavily statement ross moffitt precise rationale griffin douglas lines cases never explicitly stated support derived equal protection clause due process clause today ignores conclusion six justices joined ross unfairness results indigents singled state denied meaningful access appellate system poverty question profitably considered equal protection analysis one place douglas california stated additional obstacles placed path indigent seeking appeal conviction comport fair procedure explained unfairness entirely terms inequality lacking equality demanded fourteenth amendment rich man appeals right enjoys benefit counsel examination record research law marshalling arguments behalf indigent already burdened preliminary determination case without merit forced shift similar vein fair reading cases dealing appellate review cited reveals uniform reliance equal protection concepts due process contrary characterization anders california entsminger iowa jones barnes create indigents right effective assistance counsel appeal thus per force confer right cases simply require appointed appellate counsel represent clients vigor retained counsel ordinarily represent paying clients neither language constitution precedents establish right effective assistance counsel appeal sixth amendment provides criminal prosecutions accused shall enjoy right assistance counsel defense emphasis added observes language interpreted confer right effective assistance counsel guarantee extended state criminal prosecutions incorporation due process clause fourteenth amendment words prosecutions defense plainly indicate sixth amendment right counsel applies trial level proceedings stage accused needs attorney shield protect haled state stripped presumption innocence ross moffitt appeal convicted criminal entirely different matter found guilty beyond reasonable doubt sentenced term imprisonment subject immediate deprivation liberty without constitutional requirement proceedings seeks upset prior determination guilt universally permitted retain attorney serve sword endeavor question attorney substantial critical assistance appeal afford attorney well advised retain one commonly accordingly matter equal protection held douglas california supra must provide attorney afford one stand equal footing nonindigents seeking upset convictions however extends right beyond supporting rationale constitutional requirement state provide appeal wholly within discretion state allow allow review mckane durston state decides confer right appeal free upon terms wisdom may deemed proper decision constitutional aberration right appeal federal convictions congress granted right direct review capital cases congress extended right include otherwise infamous crimes see carroll kent commentaries american law similarly right appeal criminal convictions england see griffin illinois frankfurter concurring judgment jenks short history english law ed countries concept due process criminal proceedings addressed almost entirely fairness trial citing wainwright torna per curiam candidly acknowledges course right effective assistance counsel dependent right counsel ante proper analysis precedents indicate apart equal protection clause respondent invoked case constitutional right counsel appeal therefore even logic derived constitutional right effective assistance counsel appeal cites analogy goldberg kelly proposition state confers right appeal though required confer right must establish appellate procedures satisfy due process clause goldberg entitlement cases totally inapposite turn fact state created form property due process clause express terms applies deprivations property true due process clause also expressly applies deprivations liberty basis incorporating sixth amendment right counsel fourteenth amendment respondent liberty deprived lawful state criminal conviction see ross moffitt supra unsuccessful attempt upset conviction appellate attack statement griffin illinois supra illinois created appellate courts integral part illinois trial system finally adjudicating guilt innocence defendant characterization illinois system plurality inconsistent general view state appellate review expressed recently six members ross moffit supra consequences decision seem undesirable challenges trial counsel performance become routine federal habeas petitions lawfully convicted criminals meritorious bases attacking conduct trials able tie courts habeas petitions alleging defective performance appellate counsel result akin effect created mirror held facing another mirror image repeating infinity today decision also undermines ability state federal courts enforce procedural rules appeal presumably rules common almost every appellate system country providing dismissal appeal failure comply reasonable time limits see fed rule app proc longer enforced criminal defendant appeal understandable sympathy criminal defendant badly served lawyer hired represent appealing conviction lead treat due process clause fourteenth amendment general dispensing authority use may indiscriminately free litigants consequences attorney neglect malpractice areas life law bound often prejudice acts omissions agents believe fourteenth amendment prohibits carrying generally recognized principle prosecution appeals judgment conviction see eskridge washington state board prison terms paroles per curiam hold estitute defendants must afforded adequate appellate review defendants money enough buy transcripts quoting griffin burns ohio indigents must opportunities invoke discretion ohio lane brown present case falls clearly within area staked griffin burns smith bennett eskridge procedure based indigency alone meet constitutional standards draper washington duty state provide indigent adequate effective appellate review given appellants funds state must provide indigent defendant means presenting contentions appellate good available nonindigent defendant similar contentions anders california assure penniless defendants rights opportunities appeal nearly practicable enjoyed persons similar situation able afford retention private counsel swenson bosler per curiam assistance counsel appeal right may denied criminal defendants solely indigency see also entsminger iowa relies line cases anders jones barnes interpreting douglas anders