Evitts v. Lucey
The Supreme Court ruled that when a state allows criminal defendants to appeal their convictions, the Constitution's due process guarantee requires that the lawyer handling that appeal provide effective assistance — not just show up in name only.
The Court sided with a Kentucky man whose appeal was thrown out because his own lawyer missed a paperwork deadline, holding that a state cannot let an appeal be lost through a lawyer's basic incompetence without violating the defendant's due process rights.
“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 Court's core holding extending the right to counsel on appeal to require effective assistance.
How it got here: Kentucky courts dismissed the appeal and denied reconsideration; a federal district court granted habeas relief, the Sixth Circuit affirmed, and the state sought Supreme Court review.
The Case in Depth
What happened
A Kentucky jury convicted a man of drug trafficking. His hired lawyer filed a notice of appeal but forgot to file a required "statement of appeal" document, even though the same information appeared elsewhere in the appeal papers. Kentucky's appeals court threw out the entire appeal over this omission, refusing to look at whether the conviction itself was valid.
The question before the Court
If a state gives criminal defendants the right to appeal their convictions, does it also have to make sure their appeal lawyer actually does a competent job?
The Court's answer
Yes — the Court held that when a state creates a system of appeal as of right for criminal defendants, due process requires that appellate counsel provide effective assistance, not merely nominal representation. Because an appeal, like a trial, involves complex rules a layperson cannot navigate, a defendant whose lawyer fails to meet basic obligations is functionally in the same position as someone with no lawyer at all.
The Court found this conclusion followed from combining two existing lines of cases: one guaranteeing appellate counsel to make a first appeal meaningful, and one guaranteeing effective, not just formal, counsel at trial. It also rejected the state's argument that due process has no role in appeals states aren't constitutionally required to create, and found the man's Kentucky appeal was truly an appeal as of right, not a discretionary one, so the right to effective counsel applied.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
People convicted of crimes who have a state-created right to appeal can now challenge their convictions if their appellate lawyer botched the case, whether the lawyer was hired or appointed. States must find ways to enforce filing deadlines and other appeal rules \u2014 such as sanctioning the lawyer directly \u2014 without automatically forfeiting a defendant's entire appeal because of the attorney's mistake.
What changes now
The judgment affirms the lower federal courts' grant of habeas relief, meaning Kentucky must either reinstate the man's appeal on the merits or retry him. This is a final merits decision establishing a general due process right to effective appellate counsel; it does not itself define the specific legal standard for judging when appellate counsel's performance is deficient, leaving that question for future cases.
What this does not decide
The Court did not decide what legal standard should be used to judge claims of ineffective appellate counsel, since the state did not dispute that this lawyer's performance was deficient. It also left open how states may enforce procedural rules against negligent lawyers without violating a defendant's rights.
Concurrences and dissents
Dissent — Justice Burger
Chief Justice Burger joined Rehnquist's dissent, adding only that the decision creates another barrier to finality in criminal cases without meaningfully improving fairness, worsening what he saw as an already excessive cycle of appeals and retrials.
Dissent — Justice Rehnquist
“The result is akin to the effect created when a mirror is held facing another mirror, the image repeating itself to infinity.”Rehnquist's warning that the ruling would spawn endless habeas litigation over appellate counsel's performance.
Justice Rehnquist argued the Court invented a due process right to effective appellate counsel from precedents that don't support it, since Griffin, Douglas, and related cases rested on equal protection — ensuring indigents have the same tools as wealthier defendants — not due process. He argued the Sixth Amendment's text applies only to trials, that states have full discretion whether to allow appeals at all, and that treating due process as a catch-all excuse for attorney mistakes would flood courts with habeas claims and undermine states' ability to enforce ordinary procedural deadlines.
How the Court got there
The legal reasoning, step by step
- The Court traced two existing lines of precedent: one holding that a state offering a first appeal as of right must make that appeal 'adequate and effective,' including by supplying a lawyer to indigent defendants, and another holding that the trial-level right to counsel includes a right to effective, not merely nominal, representation.
- The Court reasoned that an appeal, like a trial, is governed by complex procedural rules a layperson cannot navigate alone, so a defendant with only a lawyer in name — but not in substance — is no better off than one with no lawyer at all.
- Applying this logic, the Court concluded that the promise of a right to appellate counsel would be an empty gesture unless it also guaranteed that the counsel's assistance be effective, just as the right to trial counsel guarantees effectiveness.
- The Court rejected the state's argument that due process has no role once a state creates a discretionary benefit like an appeal, reasoning that even optional government programs, once created, must be administered consistent with due process.
- The Court further rejected the state's claim that the appeal was merely 'conditional' rather than a true appeal as of right, finding that under Kentucky's constitution and practice, the appeal functioned as the first and only chance to determine whether the conviction was lawful.
- The Court concluded that both due process and equal protection principles, not equal protection alone, underlie the Griffin-Douglas line of cases, so a state's arbitrary loss of an appeal due to counsel's failure violates due process independent of any inequality between rich and poor defendants.
Doctrinal impact
Cases affected by this decision
Reaffirms Douglas v. California (372 U. S. 353)
The Court builds on Douglas's right to appellate counsel, extending it to require that counsel be effective.
Reaffirms Griffin v. Illinois (351 U. S. 12)
The Court relies on Griffin's requirement of an 'adequate and effective' appeal as a foundation for its holding.
Distinguishes Ross v. Moffitt (417 U. S. 600)
The Court distinguishes Ross's discretionary-appeal analysis, finding this case involved a true appeal as of right.