In Evitts v. Lucey, 469 U.S. 387 (1985), the Supreme Court held that a criminal defendant is constitutionally entitled to the effective assistance of counsel in his first appeal as of right. A defendant is denied due process if the deficient performance of his appellate counsel deprives him of "'an adequate opportunity to present his claims fairly in the context of the State's appellate process.'" 469 U.S. at 402. Such a deprivation occurred in Evitts when counsel's failure to file a "statement of appeal" as required by state procedural rules "essentially waived respondent's opportunity to make a case on the merits." 469 U.S. at 395 n.6. The Supreme Court reasoned that "the promise . . . that a criminal defendant has a federal constitutional right to counsel on appeal . . . would be a futile gesture unless it comprehended the right to the effective assistance of counsel."