# Wainwright v. Torna > Supreme Court of the United States · March 22, 1982 · 455 U.S. 586 URL: https://www.frixlaw.com/law-library/cases/9428696 ## Case - **Full name:** Wainwright, Secretary, Florida Department of Corrections v. Torna - **Court:** Supreme Court of the United States - **Decided:** March 22, 1982 - **Citations:** 455 U.S. 586; 50 U.S.L.W. 3759; 102 S. Ct. 1300; 71 L. Ed. 2d 475; 1982 U.S. LEXIS 82 - **Precedential status:** Published - **Opinion:** Dissent by Marshall - **Judges:** Marshall, Brennan - **Cited by:** 515 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9428696 ## How later opinions describe it (automated extraction) - holding that “a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals or applications for review in th[e Supreme] Court,” and, absent a constitutional right to counsel, an attorney’s failings cannot give rise to a constitution… - holding that a defendant is not deprived of effective assistance of counsel by his counsel's failure to file on time an application for certiorari to the state's highest court, where the defendant has no absolute right to appeal his conviction to the court and thus has no cons… - holding that because the defendant had no constitutional right to the assistance of counsel in pursuit of state supreme court certiorari, “he could not be deprived of the effective assistance of counsel by his retained counsel’s failure to file the [certiorari] application tim… - holding that since, under Ross the appellant had no constitutional right to counsel on a discretionary appeal, he was not deprived of effective assistance of counsel by his retained counsel's failure to timely file an application for certiorari in the Supreme Court of Florida - concluding that without a constitutional right to counsel in pursuit of state supreme court review, a state habeas petitioner “could not be deprived of the effective assistance of counsel by his ... counsel’s failure to file the application [for certiorari] timely” ## Opinion text Justice Marshall, dissenting. The majority predicates its decision in this case on Ross v. Moffitt, 417 U. S. 600 (1974), which held that a criminal defendant does not have a constitutional right to counsel to pursue discretionary state appeals. The majority reasons that because respondent had no constitutional right to counsel, his lawyer’s failure to file a timely appeal did not violate his right to effective assistance of counsel. In my view, however, Ross v. Moffitt was improperly decided. See id., at 619-621 (Douglas, J., dissenting, joined by Brennan and Marshall, JJ.). I believe that a defendant does have a constitutional right to counsel to pursue discretionary state appeals. Particularly where a criminal conviction is challenged on constitutional grounds, permissive review in the highest state court may be the most meaningful review a conviction will receive. Moreover, where a defendant seeks discretionary review, the assistance of an attorney is vital. Because I disagree with the Court’s position in Ross v. Moffitt , I disagree with its conclusion in this case also. *589 Even if I believed that Ross v. Moffttt were correctly decided, however, I would dissent from the majority’s conclusion that habeas corpus provides no recourse to a criminal defendant who has been denied his right to seek discretionary review because of his attorney’s error. Although respondent’s Sixth Amendment right to effective assistance of counsel may not have been infringed, he was denied his right to due process. Respondent’s counsel promised him that he would seek review in the Florida Supreme Court. Respondent reasonably relied on that promise. Counsel nonetheless failed to file a timely application. * As a result, respondent was deprived of his right to seek discretionary review by the State’s highest court. As I suggested above, this loss is significant. I would hold that when a defendant can show that he reasonably relied on his attorney’s promise to seek discretionary review, due process requires the State to consider his application, even when the application is untimely. To deny the right to seek discretionary review simply because of counsel’s error is fundamentally unfair. Requiring the state courts to consider untimely applications when a defendant can show that he reasonably relied on his counsel will not impose a heavy burden. The State is not required to grant the application; it is simply barred from dismissing the application on the ground that it was not timely filed. *590 The majority argues that even if deprivation of the right to petition the Florida Supreme Court for review implicates a due process interest, there was no state action here. It reasons that the deprivation of this right was caused by respondent’s counsel — a private retained attorney — and not by the State. Ante, at 588, n. 4. In my view, however, there was sufficient state involvement to satisfy the requirements of the Fourteenth Amendment. The majority’s position is inconsistent with Cuyler v. Sullivan, 446 U. S. 335 (1980). In that case, the Court rejected the respondent’s assertion that the failings of retained counsel at a criminal trial could not provide a basis for federal habeas corpus relief, because his conduct does not involve state action. It held that a state criminal trial, a proceeding initiated and conducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment. “When a State obtains a criminal conviction through such a trial, it is the State that unconstitutionally deprives the defendant of his liberty.” Id., at 343 . “[T]he State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction.” Id., at 344 . It is true that Cuyler v. Sullivan involved a challenge to the conduct of a private attorney during the trial, while this case involves a challenge to the post-trial conduct of a private attorney. However, post-trial proceedings are an integral part of the criminal process. In my view, the State is just as much implicated in those proceedings as in the trial itself. Here, for example, Florida was responsible for structuring the procedure by which criminal convictions are reviewed. In particular, it designed the rules governing the right to seek discretionary review, including the rule that applications are automatically rejected when filed out of time. Under the circumstances, I think it clear that the state-action requirement is satisfied. Notice of the intent to apply for discretionary review was due in the office of the Clerk for the District Court of Appeal, Third District of Florida, on July 17,1978. It was filed one day late, on July 18,1978. According to respondent, a secretary in his attorney’s office attempted to deliver the required papers on July 14, 1981. She became lost while traveling to the Clerk’s office, and did not arrive until after it had closed. Because she did not realize that she could have placed the papers in a night depository box, she took them home and placed them in the mail. Record 29-30. To deny respondent the right to seek discretionary review, where he reasonably relied on his counsel’s promise to apply for such review, and where counsel failed to comply with this promise only because of circumstances beyond his control, would be doubly unfair. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428696. Public record. Not legal advice.