US SUPREME COURT DECISIONS

After respondent was convicted of a drug offense in a Kentucky state court, his retained counsel filed a timely notice of appeal to the Kentucky Court of Appeals. But because counsel failed to file the statement of appeal required by a Kentucky Rule of Appellate Procedure when he filed his brief and record on appeal, the Court of Appeals dismissed the appeal and later denied a motion for reconsideration. The Kentucky Supreme Court affirmed, and the trial court denied a motion to vacate the conviction or grant a belated appeal. The respondent then sought habeas corpus relief in Federal District Court, challenging the dismissal of his appeal on the ground that it deprived him of the right to effective assistance of counsel on appeal guaranteed by the Due Process Clause of the Fourteenth Amendment. The District Court granted a conditional writ of habeas corpus, ordering respondent's release unless the Commonwealth either reinstated his appeal or retried him. The United States Court of Appeals affirmed.

Held: The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel on his first appeal as of right. Pp. 469 U. S. 391-405.

(a) 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. The promise of Douglas v. California, 372 U. S. 353, that a criminal defendant has a right to counsel on his first appeal as of right -- like the promise of Gideon v. Wainwright, 372 U. S. 335, that a criminal defendant has a right to counsel at trial -- would be a futile gesture unless it comprehended the right to effective assistance of counsel. Pp. 469 U. S. 391-400.

(b) When a State opts to act in a field where its action has significant discretionary elements, such as where it establishes a system of appeals as of right although not required to do so, it must nonetheless act in chanrobles.com-red

Page 469 U. S. 388

accord with the dictates of the Constitution, and, in particular, in accord with the Due Process Clause. Pp. 469 U. S. 400-401.

(c) Under any reasonable interpretation of the line drawn in Ross v. Moffitt, 417 U. S. 600, between discretionary appeals in which a criminal defendant has no right to counsel and appeals as of right in which he does, a criminal defendant's appeal of a connection to the Kentucky Court of Appeals is an appeal as of right. The Kentucky Constitution requires that at least one appeal as of right be allowed in all cases, civil and criminal. And a criminal defendant appealing to the Kentucky Court of Appeals has not previously had an adequate opportunity to present his claims fairly in the context of the State's appellate process. It follows that for purposes of analysis under the Due Process Clause, respondent's appeal was an appeal as of right, thus triggering the right to counsel recognized in Douglas v. California, supra. Pp. 469 U. S. 401-402.

(d) Petitioners' argument that the Due Process Clause has no bearing on the Commonwealth's actions in this case because the constitutional requirements recognized in Griffin v. Illinois, 351 U. S. 12 (the transcript of the trial is a prerequisite to a decision on the merits of an appeal), Douglas v. California, supra, and the cases that followed had their source in the Equal Protection Clause, not the Due Process Clause, rests on a misunderstanding of the diverse sources of this Court's holdings in this area of the law. Both due process and equal protection concerns were implicated in Griffin and Douglas and both Clauses supported those decisions. Pp. 469 U. S. 402-405.

724 F.2d 560, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined. BURGER, C.J.,filed a dissenting opinion, post, p. 469 U. S. 405. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,joined, post, p. 469 U. S. 406.