Atilus v. United States, 25916.

• Decision Date: 28 January 1969
• Docket Number: No. 25916.,25916.
• Parties: Jerome ATILUS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 694 (1969)

Jerome ATILUS, Appellant, v. UNITED STATES of America, Appellee.

No. 25916.

United States Court of Appeals Fifth Circuit.

January 28, 1969.

Bruce S. Rogow, Miami, Fla., for appellant.

William A. Meadows, Jr., U. S. Atty., Michael J. Osman, Asst. U. S. Atty., Miami, Fla., for appellee.

Before TUTTLE and AINSWORTH, Circuit Judges, and MITCHELL, District Judge.

TUTTLE, Circuit Judge:

This appeal raises the difficult question whether the failure of non-appointed counsel in a criminal case in the United States District Court to perfect an appeal, when requested to do so, amounts to such dereliction of duty as to deny an accused the "effective aid" of counsel at a critical stage of the proceedings.

This is an appeal in forma pauperis from a denial by the lower court of the appellant's motion to vacate or set aside this sentence, or, in the alternative, to provide for an out of time appeal.

In 1964, the appellant was convicted on five of eight counts of violation of federal narcotics laws. At the trial he was represented by retained counsel. Immediately after the trial, Atilus told his counsel he wished to have an appeal taken from his conviction. However, no appeal was taken during the short statutory period allowed. At the time of his trial and conviction, appellant was serving a sentence at the state prison at Raiford, Florida, and immediately upon his being sentenced by the district court he was returned to Raiford, and was thus in communication with his counsel, if at all, only by correspondence.

On a Section 2255 hearing in the trial court, counsel testified as follows:

"You recollect that you had any conversation with Atilus whatsoever about the question of appealing his case?

"A. I think he indicated at the time after the trial that he wanted to appeal and was interested in appealing.

"Q. Is it not true that it was in court after he was sentenced that he indicated that he wanted to appeal or that he asked if he could appeal?

"A. I believe that is true.

"Q. You never filed any appeal for him, did you?

"A. No, but we had some extensive correspondence regarding an appeal. Do you want me to go into that?"

The extensive correspondence will be referred to in more detail later. In any event, it is clear that Atilus, who was then serving a state sentence at Raiford prison was immediately taken back there and the only communication available between lawyer and client during the period in which an appeal could be filed was by correspondence. The first such correspondence was a letter dated March 26, 1964, six days after the appellant's conviction and sentence. In this letter no word was made concerning an appeal. The lawyer stated "I am sorry that I was not able to see you before you left going back to Raiford. I will do everything that I can to get you parole, and to do everything to take care of business while you are there." (emphasis added.) The letter enclosed a power of attorney which the lawyer requested Atilus to sign so that the lawyer might collect his fee. The time to appeal expired on March 30th. No response was made by Atilus to the request that he sign the broad power of attorney contained in the letter of March 26th. However, in subsequent letters of April 2nd and April 8th, the lawyer repeated the request that the power of attorney be signed. Finally in the letter dated April 8th, the lawyer enclosed a second power of attorney for him to sign and said, "I cannot help you until you do this."

Of course, by this time the time for filing notice of appeal had expired.

Our problem here arises from the fact that the status of the relationship between Atilus and his trial counsel is difficult to determine at the time when the right of appeal expired. The lawyer had not asked the court to be relieved from any further representation of Atilus; he had not expressly notified his client that he was withdrawing from the case; nor had he notified him that he would not carry out appellant's expressed wish to file a notice of appeal unless paid the fee already earned and/or a fee for future services. Thus, it seems reasonably clear that on the 30th day of March, 1964, Atilus was represented by counsel who, although unpaid, still owed his client the duty of representation. It seems plain that counsel, not having been paid, concluded that he would rather maintain an ambivalent position with the hope that he might still obtain compensation for what he had done, while realizing that if he specifically withdrew from the case his chances for receiving compensation for past services would go glimmering.

It is, of course, perfectly plain that an accused has the right to engage private counsel on such terms as are agreed upon between them. No duty devolves upon the court to appoint counsel when private counsel is thus engaged. Counsel, of course, is entitled to charge for his services, but if, for whatever reason, he permits his services to be used without compensation or security for compensation from his client until a critical stage of the proceedings arrives, he can't be permitted simply to bow out without notice either to court or client and frustrate forever the right of the client to protect his vital interests. That seems to be precisely what happened here.

This court has dealt repeatedly with the problem presented when either court appointed counsel or privately engaged counsel is charged, following conviction and sentence, with having failed to provide the effective aid to which the Supreme Court, beginning with Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 has said every federally tried accused person is entitled.

We begin with several basic principles. The first of these is that every convicted person has an absolute right to an appeal. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21. Where an accused is represented by counsel appointed by the court, the Federal Rules of Criminal Procedure undertake to cover the situation that faces such a convicted person when he wishes to file an appeal. This rule provides as follows:

"After imposing sentence in a case that has gone to trial on a plea of not guilty, the court, shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant." Federal Rules of Criminal Procedure, Rule 32(a) (2).

In such a situation, and especially now in light of the fact that both appointed trial counsel and appointed appellate counsel are at least partially compensated under the criminal justice act, the likelihood of an accused, represented by court appointed counsel, failing to have his appeal noticed is remote. Nevertheless, when it does occur, and where the trial ends with appointed counsel failing to take the action desired by the accused by filing a notice of appeal and the convicted person...