In the case of Wainwright, Secretary, Florida Department of Corrections v. Torna in 1981, the U.S Supreme Court addressed an issue regarding ineffective assistance of counsel. The defendant, Anthony Torna was convicted for first-degree murder and sentenced to death in Florida state court. His attorney failed to file a timely appeal to the Florida Supreme Court which led Torna to claim that he had been denied effective assistance of counsel as guaranteed by the Sixth Amendment. However, his petition was dismissed by both federal district court and appeals court on grounds that there were no constitutional rights violated since there is no constitutional right to an appeal. The U.S Supreme Court affirmed these decisions stating that because a criminal defendant does not have a fundamental right under Constitution's due process clause or equal protection clause for discretionary review beyond direct appeal from conviction and sentence; therefore failure by counsel to file application for such review cannot be considered denial of effective representation.

In the dissenting opinion for Wainwright v. Torna, Justice Marshall argued that the majority's decision was a misinterpretation of the Sixth Amendment right to effective counsel. He contended that Torna's attorney failed to provide adequate legal representation by not filing an appeal within the required time frame, thereby denying his client due process under law. According to Justice Marshall, this constituted ineffective assistance of counsel and should have been grounds for granting certiorari (a review of lower court proceedings). The denial of certiorari meant that Torna was denied his constitutional right to challenge his conviction and sentence in appellate courts because of his lawyer’s negligence or incompetence – something which he believed contradicted fundamental principles underlying American jurisprudence.