JUSTICE BRENNAN delivered the opinion of the Court.
Douglas v. California, 372 U.S. 353 (1963), held that the Fourteenth Amendment guarantees a criminal defendant the right to counsel on his first appeal as of right. In this case,
On March 21, 1976, a Kentucky jury found respondent guilty of trafficking in controlled substances. His retained counsel filed a timely notice of appeal to the Court of Appeals of Kentucky, the state intermediate appellate court. Kentucky Rule of Appellate Procedure 1.095(a)(1) required appellants to serve on the appellate court the record on appeal and a "statement of appeal" that was to contain the names of appellants and appellees, counsel, and the trial judge, the date of judgment, the date of notice of appeal, and additional information.
Respondent then sought federal habeas corpus relief in the United States District Court for the Eastern District of Kentucky. He challenged the constitutionality of the Commonwealth's dismissal of his appeal because of his lawyer's failure to file the statement of appeal, on the ground that the dismissal deprived him of his right to effective assistance of counsel on appeal guaranteed by the Fourteenth Amendment. The District Court granted respondent a conditional writ of habeas corpus ordering his release unless the Commonwealth either reinstated his appeal or retired him.
On remand, counsel for both parties stipulated that there was no equal protection issue in the case, the only issue being whether the state court's action in dismissing respondent's appeal violated the Due Process Clause. The District Court thereupon reissued the conditional writ of habeas corpus. On January 12, 1984, the Court of Appeals for the Sixth Circuit affirmed the judgment of the District Court. Lucey v. Kavanaugh, 724 F.2d 560. We granted the petition for certiorari. 466 U.S. 949 (1984). We affirm.
Respondent has for the past seven years unsuccessfully pursued every avenue open to him in an effort to obtain a decision on the merits of his appeal and to prove that his conviction was unlawful. The Kentucky appellate courts' refusal to hear him on the merits of his claim does not stem from any view of those merits, and respondent does not argue in this Court that those courts were constitutionally required to render judgment on the appeal in his favor. Rather the issue we must decide is whether the state court's dismissal of the appeal, despite the ineffective
Before analyzing the merits of respondent's contention, it is appropriate to emphasize two limits on the scope of the question presented. First, there is no challenge to the District Court's finding that respondent indeed received ineffective assistance of counsel on appeal. Respondent alleges — and petitioners do not deny in this Court — that his counsel's failure to obey a simple court rule that could have such drastic consequences required this finding. We therefore need not decide the content of appropriate standards for judging claims of ineffective assistance of appellate counsel. Cf. Strickland v. Washington, 466 U.S. 668 (1984); United States v. Cronic, 466 U.S. 648 (1984). Second, the stipulation in the District Court on remand limits our inquiry solely to the validity of the state court's action under the Due Process Clause of the Fourteenth Amendment.
Respondent's claim arises at the intersection of two lines of cases. In one line, we have held that the Fourteenth Amendment guarantees a criminal appellant pursuing a first appeal as of right certain minimum safeguards necessary to make that appeal "adequate and effective," see Griffin v. Illinois, 351 U.S. 12, 20 (1956); among those safeguards is the right to counsel, see Douglas v. California, 372 U.S. 353 (1963). In the second line, we have held that the trial-level right to counsel, created by the Sixth Amendment and applied to the States through the Fourteenth Amendment, see Gideon v. Wainwright, 372 U.S. 335, 344 (1963), comprehends the right to effective assistance of counsel. See Cuyler v. Sullivan, 446 U.S. 335, 344 (1980). The question presented in this case is whether the appellate-level right to counsel also comprehends the right to effective assistance of counsel.
Almost a century ago, the Court held that the Constitution does not require States to grant appeals as of right to criminal defendants seeking to review alleged trial court errors. McKane v. Durston, 153 U.S. 684 (1894). Nonetheless, if a State has created appellate courts as "an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant," Griffin v. Illinois, 351 U. S., at 18, the procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution. In Griffin itself, a transcript of the trial court proceedings was a prerequisite to a decision on the merits of an appeal. See id., at 13-14. We held that the State must provide such a transcript to indigent criminal appellants who could not afford to buy one if that was the only way to assure an "adequate and effective" appeal. Id., at 20; see also Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214, 215 (1958) (per curiam) (invalidating state rule giving free transcripts only to defendants who could convince trial judge that "justice will thereby be promoted"); Burns v. Ohio, 360 U.S. 252 (1959) (invalidating state requirement that indigent defendants pay fee before filing notice of appeal of conviction); Lane v. Brown, 372 U.S. 477 (1963) (invalidating procedure whereby meaningful appeal was possible only if public defender requested a transcript); Draper v. Washington, 372 U.S. 487 (1963) (invalidating state procedure providing for free transcript only for a defendant who could satisfy the trial judge that his appeal was not frivolous).
Just as a transcript may by rule or custom be a prerequisite to appellate review, the services of a lawyer will for virtually every layman be necessary to present an appeal in a form suitable for appellate consideration on the merits. See Griffin, supra, at 20. Therefore, Douglas v. California, supra, recognized that the principles of Griffin required a
Gideon v. Wainwright, supra, held that the Sixth Amendment right to counsel was " `so fundamental and essential to a fair trial, and so, to due process of law, that it is made obligatory upon the States by the Fourteenth Amendment.' " Id., at 340, quoting Betts v. Brady, 316 U.S. 455, 465 (1942); see also Powell v. Alabama, 287 U.S. 45 (1932); Johnson v. Zerbst, 304 U.S. 458 (1938). Gideon rested on the "obvious truth" that lawyers are "necessities, not luxuries" in our adversarial system of criminal justice. 372 U. S., at 344. "The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." Herring v. New York, 422 U.S. 853, 862 (1975). The defendant's liberty depends on his ability to present his case in the face of "the intricacies of the law and the advocacy of the public prosecutor," United States v. Ash, 413 U.S. 300, 309 (1973); a criminal trial is thus not conducted in accord with due process of law unless the defendant has counsel to represent him.
As the quotation from Strickland, supra, makes clear, the constitutional guarantee of effective assistance of counsel at trial applies to every criminal prosecution, without regard to whether counsel is retained or appointed. See Cuyler v.
The two lines of cases mentioned — the cases recognizing the right to counsel on a first appeal as of right and the cases recognizing that the right to counsel at trial includes a right to effective assistance of counsel — are dispositive of respondent's claim. In bringing an appeal as of right from his conviction, a criminal defendant is attempting to demonstrate that the conviction, with its consequent drastic loss of liberty, is unlawful. To prosecute the appeal, a criminal appellant must face an adversary proceeding that — like a trial — is governed by intricate rules that to a layperson would be hopelessly forbidding. An unrepresented appellant — like an unrepresented defendant at trial — is unable to protect the vital interests at stake. To be sure, respondent did have nominal representation when he brought this appeal. But nominal representation on an appeal as of right — like nominal representation at trial — does not suffice to render the proceedings constitutionally adequate; a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all.
A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.
Recognition of the right to effective assistance of counsel on appeal requires that we affirm the Sixth Circuit's decision in this case. Petitioners object that this holding will disable state courts from enforcing a wide range of vital procedural rules governing appeals. Counsel may, according to petitioners, disobey such rules with impunity if the state courts are precluded from enforcing them by dismissing the appeal.
Petitioners' concerns are exaggerated. The lower federal courts — and many state courts — overwhelmingly have recognized
To the extent that a State believes its procedural rules are in jeopardy, numerous courses remain open. For example, a State may certainly enforce a vital procedural rule by imposing sanctions against the attorney, rather than against the client. Such a course may well be more effective than the alternative of refusing to decide the merits of an appeal and will reduce the possibility that a defendant who was powerless to obey the rules will serve a term of years in jail on an unlawful conviction. If instead a state court chooses to dismiss an appeal when an incompetent attorney has violated local rules, it may do so if such action does not intrude upon the client's due process rights. For instance the Kentucky Supreme Court itself in other contexts has permitted a post-conviction attack on the trial judgment as "the appropriate remedy for frustrated right of appeal," Hammershoy v. Commonwealth, 398 S.W.2d 883 (1966); this is but one of several solutions that state and federal courts have permitted in similar cases.
Petitioners urge that our reasoning rests on faulty premises. First, petitioners argue that because the Commonwealth need not establish a system of appeals as of right in the first instance, it is immune from all constitutional scrutiny when it chooses to have such a system. Second, petitioners deny that respondent had the right to counsel on his appeal to the Kentucky Court of Appeals because such an appeal was a "conditional appeal," rather than an appeal as of right. Third, petitioners argue that, even if the Commonwealth's actions here are subject to constitutional scrutiny and even if the appeal sought here was an appeal as of right, the Due Process Clause — upon which respondent's claimed right to effective assistance of counsel is based — has no bearing on the Commonwealth's actions in this case. We take up each of these three arguments in turn.
In support of their first argument, petitioners initially rely on McKane v. Durston, 153 U.S. 684 (1894), which held that a State need not provide a system of appellate review as of right at all. See also Ross v. Moffitt, 417 U. S., at 611; Jones v. Barnes, 463 U. S., at 751. Petitioners derive from this proposition the much broader principle that "whatever a state does or does not do on appeal — whether or not to have an appeal and if so, how to operate it — is of no due process concern to the Constitution . . . ." Brief for Petitioners 23. It would follow that the Kentucky court's action in cutting off respondent's appeal because of his attorney's incompetence would be permissible under the Due Process Clause.
The right to appeal would be unique among state actions if it could be withdrawn without consideration of applicable due
Petitioners' second argument relies on the holding of Ross v. Moffitt, supra, that a criminal defendant has a right to counsel only on appeals as of right, not on discretionary state appeals. According to petitioners, the Kentucky courts permit criminal appeals only on condition that the appellant follow the local rules and statutes governing such appeals. See Brown v. Commonwealth, 551 S.W.2d 557, 559 (1977). Therefore, the system does not establish an appeal as of right, but only a "conditional appeal" subject to dismissal if the state rules are violated. Petitioners conclude that if respondent has no appeal as of right, he has no right to counsel — or to effective assistance of counsel — on his "conditional appeal."
Under any reasonable interpretation of the line drawn in Ross between discretionary appeals and appeals as of right, a criminal defendant's appeal of a conviction to the Kentucky Court of Appeals is an appeal as of right. Section 115 of the
Finally, petitioners argue that even if the Due Process Clause does apply to the manner in which a State conducts its system of appeals and even if the appeal denied to respondent was an appeal as of right, the Due Process Clause nonetheless is not offended by the Kentucky court's refusal to decide respondent's appeal on the merits, because that Clause has no role to play in granting a criminal appellant the right to counsel — or a fortiori to the effective assistance of counsel — on appeal. Although it may seem that Douglas and its progeny defeat this argument, petitioners attempt to distinguish these cases by exploiting a seeming ambiguity in our previous decisions.
Petitioners' argument rests on a misunderstanding of the diverse sources of our holdings in this area. In Ross v. Moffitt, 417 U. S., at 608-609, we held that "[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment." Accord, Bearden v. Georgia, 461 U.S. 660, 665 (1983) ("Due process and equal protection principles converge in the Court's analysis in these cases"). See also Note, The Supreme Court, 1962 Term, 77 Harv. L. Rev. 62, 107, n. 13 (1963) (citing cases). This rather clear statement in Ross that the Due Process Clause played a significant role in prior decisions is well supported by the cases themselves.
In Griffin, for instance, the State had in effect dismissed petitioner's appeal because he could not afford a transcript. In establishing a system of appeal as of right, the State had implicitly determined that it was unwilling to curtail drastically a defendant's liberty unless a second judicial decisionmaker,
Our decisions in Anders, Entsminger v. Iowa, 386 U.S. 748 (1967), and Jones v. Barnes, 463 U.S. 745 (1983), are all inconsistent with petitioners' interpretation. As noted above, all of these cases dealt with the responsibilities of an attorney representing an indigent criminal defendant on appeal.
The lesson of our cases, as we pointed out in Ross, supra, at 609, is that each Clause triggers a distinct inquiry: "`Due Process' emphasizes fairness between the State and the individual dealing with the State, regardless of how other individuals in the same situation may be treated. `Equal Protection,' on the other hand, emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable."
CHIEF JUSTICE BURGER, dissenting.
Few things have so plagued the administration of criminal justice, or contributed more to lowered public confidence in
Today, the Court, as JUSTICE REHNQUIST cogently points out, adds another barrier to finality and one that offers no real contribution to fairer justice. I join JUSTICE REHNQUIST in dissenting.
JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, dissenting.
In this case the Court creates virtually out of whole cloth a Fourteenth Amendment due process right to effective assistance of counsel on the appeal of a criminal conviction. The materials with which it works — previous cases requiring that indigents be afforded the same basic tools as those who are not indigent in appealing their criminal convictions, and our cases interpreting the Sixth Amendment's guarantee of the "assistance of counsel" at a criminal trial — simply are not equal to the task they are called upon to perform.
The Court relies heavily on the statement in Ross v. Moffitt, 417 U.S. 600, 608-609 (1974), that "[t]he precise rationale for the Griffin and Douglas lines of cases has never been explicitly stated, some support being derived from the Equal Protection Clause . . . and some from the Due Process Clause." But today's Court ignores the conclusion of the six Justices who joined in Ross:
As further precedential support for a right to due process on appeal, the Court cites passing dictum in Bearden v. Georgia, 461 U.S. 660 (1983), but that case has nothing to do with appellate review. In fact, this Court's precedents have not imposed any procedural requirements on state appeals other
At one place in Douglas v. California, 372 U.S. 353, 357 (1963), the Court stated that the additional obstacles placed in the path of an indigent seeking to appeal a conviction did not "comport with fair procedure," but it explained this unfairness entirely in terms of inequality:
Even the plurality in Griffin v. Illinois, 351 U.S. 12, 18-19 (1956), simply held that the Due Process and Equal Protection Clauses protect indigents from "invidious discriminations" on appeal and that such persons "must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." Moreover, Justice Frankfurter, whose concurrence was necessary to the decision, viewed the decision as a matter of equal protection. Id., at 21-22.
In similar vein, a fair reading of our other cases dealing with appellate review cited by the Court reveals uniform reliance on equal protection concepts and not due process.
Neither the language of the Constitution nor this Court's precedents establish a right to effective assistance of counsel on appeal. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense" (emphasis added). As the Court observes, this language has been interpreted to confer a right to effective assistance of counsel, and its guarantee has been extended to state criminal prosecutions by incorporation into the Due Process Clause of the Fourteenth Amendment. But the words "prosecutions" and "defense" plainly indicate that the Sixth Amendment right to counsel applies only to trial level proceedings. At this stage, the accused needs an attorney "as a shield to protect him against being `haled into court' by the State and stripped of
An appeal by a convicted criminal is an entirely different matter. He has been found guilty beyond a reasonable doubt and, if sentenced to a term of imprisonment, is subject to immediate deprivation of his liberty without any constitutional requirement of further proceedings. He seeks "to upset the prior determination of guilt" and universally is permitted to retain an attorney to serve "as a sword" in that endeavor. Id., at 611. There is no question that an attorney is of substantial, if not critical, assistance on appeal, and those who can afford an attorney are well advised to retain one and commonly do so. Accordingly, as a matter of equal protection, we held in Douglas v. California, supra, that the States must provide an attorney to those who cannot afford one so that they stand on equal footing with nonindigents in seeking to upset their convictions. The Court, however, extends that right beyond its supporting rationale.
There is no constitutional requirement that a State provide an appeal at all. "It is wholly within the discretion of the State to allow or not to allow such a review." McKane v. Durston, 153 U.S. 684, 687 (1894). If a State decides to confer a right of appeal, it is free to do so "upon such terms as in its wisdom may be deemed proper." Id., at 687-688. This decision was not a constitutional aberration. There was no right of appeal from federal convictions until 1889 when Congress granted a right of direct review in the Supreme Court in capital cases. In 1891 Congress extended this right to include "otherwise infamous" crimes. See Carroll v. United States, 354 U.S. 394, 400, n. 9 (1957); 1 J. Kent, Commentaries on American Law *325 (1896). Similarly, there was no right of appeal from criminal convictions in England until 1907. See Griffin v. Illinois, 351 U. S., at 21 (Frankfurter, J., concurring in judgment); E. Jenks, A Short History of English Law 353 (6th ed. 1949). In both countries,
Citing Wainwright v. Torna, 455 U.S. 586, 587-588 (1982) (per curiam), the Court candidly acknowledges that "[o]f course, the right to effective assistance of counsel is dependent on the right to counsel itself." Ante, at 397, n. 7. Proper analysis of our precedents would indicate that apart from the Equal Protection Clause, which respondent has not invoked in this case, there cannot be a constitutional right to counsel on appeal, and that, therefore, even under the logic of the Court there cannot be derived a constitutional right to effective assistance of counsel on appeal.
The Court cites by analogy Goldberg v. Kelly, 397 U.S. 254 (1970), for the proposition that a State that confers a right to appeal, though not required to confer such a right, must establish appellate procedures that satisfy the Due Process Clause. Goldberg and the other so-called "entitlement" cases are totally inapposite. They turn on the fact that the State has created a form of "property," and the Due Process Clause by its express terms applies to deprivations of "property." True, the Due Process Clause also expressly applies to deprivations of "liberty," which is the basis for incorporating the Sixth Amendment right to counsel into the Fourteenth Amendment. But respondent's "liberty" was deprived by his lawful state criminal conviction, see Ross v. Moffitt, supra, at 610-611, not his unsuccessful attempt to upset that conviction by appellate attack. The statement in Griffin v. Illinois, supra, at 18, that Illinois has created appellate courts as "an integral part of the Illinois trial system for finally adjudicating the guilt or innocence of a defendant" is only a characterization of the Illinois court system by a plurality of the Court and is inconsistent with the general view of state appellate review expressed more recently by six Members of the Court in Ross v. Moffit, supra, at 610-611.
Today's decision also undermines the ability of both the state and the federal courts to enforce procedural rules on appeal. Presumably, rules which are common to almost every appellate system in our country providing for dismissal of an appeal for failure to comply with reasonable time limits, see, e. g., Fed. Rule App. Proc. 31(c), can no longer be enforced against a criminal defendant on appeal. The Court's understandable sympathy with a criminal defendant who has been badly served by the lawyer whom he hired to represent him in appealing his conviction has lead it to treat the Due Process Clause of the Fourteenth Amendment as a general dispensing authority, by the use of which the Court may indiscriminately free litigants from the consequences of their attorney's neglect or malpractice. In most other areas of life and law we are bound, often to our prejudice, by the acts and omissions of our agents, and I do not believe that the Fourteenth Amendment prohibits the States from carrying over that generally recognized principle to the prosecution of appeals from a judgment of conviction.
"In all cases the appellant shall file with the record on appeal a statement setting forth: (a) The name of each appellant and each appellee. . . . (b) The name and address of counsel for each appellant and each appellee. (c) The name and address of the trial judge. (d) The date the judgment appealed from was entered, and the page of the record on appeal on which it may be found. . . . (e) The date the notice of appeal was filed and the page of the record on appeal on which it may be found. (f) Such of the following facts, if any, as are true: (1) a notice of cross appeal has been filed; (2) a supersedeas bond has been executed; (3) any reason the appeal should be advanced; (4) this is a suit involving multiple claims and judgment has been made final . . . ; (5) there is another appeal pending in a case which involves the same transaction or occurrence, or a common question of law or fact, with which this appeal should be consolidated, giving the style of the other case; (6) the appellant is free on bond." As set forth in Brief for Petitioners 9-10, n. 3.