In the case of Evitts, Superintendent, Blackburn Correctional Complex et al. v. Lucey (1984), the U.S Supreme Court held that a defendant has a constitutional right to effective assistance of counsel during his first appeal as of right. The court ruled in favor of respondent Lucey who was convicted for theft and sentenced to five years imprisonment by Kentucky courts. His conviction was affirmed on appeal due to an error made by his attorney in filing the notice for appeal which led to its dismissal. The Supreme Court found that this constituted ineffective assistance from counsel and violated Lucey's Fourteenth Amendment rights under Due Process Clause since he had been denied fair procedure.

In the dissenting opinion for Evitts v. Lucey, Justice Rehnquist argued that while defendants have a right to counsel in their first appeal of right, they do not necessarily have a constitutional right to effective assistance of counsel during this process. He contended that the majority's ruling expanded upon previous decisions and created an entirely new constitutional rule without sufficient justification or precedent. Furthermore, he expressed concern about how lower courts would apply this standard and determine what constitutes "effective" representation on appeal. He also pointed out potential practical difficulties with implementing such a requirement, including increased litigation over attorney performance and possible discouragement of attorneys from taking on appellate cases due to fear of malpractice claims.