Calland v. United States

• Decision Date: 10 October 1963
• Docket Number: No. 14172.,14172.
• Citation: 323 F.2d 405
• Parties: Joshua Lee CALLAND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

323 F.2d 405 (1963)

Joshua Lee CALLAND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 14172.

United States Court of Appeals Seventh Circuit.

October 10, 1963.

Edwin A. Rothschild, Chicago, Ill., Joshua Lee Calland, for appellant.

Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Joshua Lee Calland, petitioner, has appealed from an order of the district court entered January 17, 1963, which denied his motion of October 30, 1962 requesting that the court grant him the right to appeal his conviction and sentence by the district court on April 10, 1962, despite petitioner's explanation that, although the time for filing a notice of appeal had long since expired when his motion was filed, the delay was occasioned by the fraud and ineffective assistance of counsel.

The motion upon which the district court ruled was subscribed and sworn to by petitioner before a parole officer in the United States penitentiary, where undoubtedly petitioner is serving said sentence, the total effect of which was to impose a term of imprisonment of 10 years.

According to the verified motion, Wayne Miller, counsel for petitioner at his trial, failed to provide effective assistance to defendant.

The district court also had before it, when it made its ruling of January 17, 1963, petitioner's so-called motion to show cause in which it is alleged that petitioner was tried on April 10, 1962 for a violation of 18 U.S.C. §§ 1708 and 495, and that immediately after sentence was imposed petitioner instructed his attorney to give notice of appeal, which counsel agreed to do; that on April 11, 1962, in the Allen County jail, he again instructed his counsel to give notice of appeal and obtain transcript of the proceedings, which counsel agreed to do, but that he "has never heard from or seen defense counsel since the conference of April 11, 1962."

Said motion also alleges that on April 19, 1962, he conferred at the county jail with attorney Norbert L. Wyss and retained him to file the notice of appeal and pay the filing fee of $5; and on April 23, 1962 he paid attorney Wyss $200 for his services in filing the notice of appeal and starting the appeal, pursuant to 18 U.S.C.A. rule 37(a) (2), Federal Rules of Criminal Procedure. The next day, according to petitioner's motion, he was removed to the United States penitentiary and later transferred to the penitentiary where he is now confined. According to the motion, petitioner on May 28, 1962 received a letter from attorney Wyss stating that he was working in all haste on the motion, but, on or about August 24, 1962, petitioner received a copy of the docket sheet from the district court which revealed that no notice of appeal was filed in the district court, no motion was there made to support an appellate review and Wyss' name did not appear on said docket sheet.

On October 24, 1962, according to the motion, petitioner received from attorney Wyss a letter stating that he had held conferences with one Carol Honess, an investigating agent, the district attorney and various policemen and that "He feels the success of an appeal is nil."

On the basis of the charges of petitioner that there was ineffective assistance of counsel and that counsel had perpetrated fraud and misrepresentation upon him, we granted leave to petitioner to proceed in forma pauperis in this court, and appointed attorney Edwin A. Rothschild of the Illinois bar to represent him.

Said rule 37(a) (2) provides, in part:

"* * * An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, * * *. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. * * *"

Assuming, only for the purposes of this opinion, the truth of the allegations of facts by petitioner, it is evident that he was desirous of having a review by this court of his conviction and that he in effect so instructed attorney Miller, who represented him at the trial. He gave this instruction twice, once immediately after sentencing and again on the following day, and his lawyer agreed to act accordingly. After the expiration of nine days, not hearing from his attorney, he retained attorney Wyss for the same purpose and thereafter paid him a substantial fee as a retainer, only to learn several months later that the docket of the district court did not show that a notice of appeal had been filed. Not until October did he learn that attorney Wyss considered his appeal would be fruitless.

The United States Supreme Court said in Coppedge v. United States, 369 U.S. 438, 441, 82 S.Ct. 917, 919, 8 L.Ed.2d 21:

"Present federal law has made an appeal from a District Court\'s judgment of conviction in a criminal case what is, in effect, a matter of right. That is, a defendant has a right to have his conviction reviewed by a Court of Appeals, and need not petition that court for an exercise of its discretion to allow him to bring the case before the court. The only requirements a defendant must meet for perfecting his appeal are those expressed as time limitations within which various procedural steps must be completed. First, a timely notice of appeal must be filed in the District Court to confer jurisdiction upon the Court of Appeals over the case. * * *"

In Coppedge, at 442 of 369 U.S., at 919 of 82 S.Ct., the court remarked:

"The indigent defendant will generally experience no material difficulty in filing a timely notice of appeal. * * *"

It added, however, in footnote 5, p. 442 of 369 U.S., p. 919 of 82 S.Ct., language indicating that it favored "a liberal view of papers filed by indigent and incarcerated defendants, as equivalents of notices of appeal * * *".

In Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865, the petitioner within the time for appeal had written to the trial judge from the district jail, stating that he did not know if he was represented by counsel and advising the judge of his "desire to appeal". There followed a lengthy correspondence in which the petitioner requested the aid of counsel for appeal and the judge advised the petitioner that he must employ private counsel. The Court of Appeals considered the informal letter constituted a notice of appeal.

In the case at bar petitioner had at least attempted to safeguard his rights by securing counsel to represent him, and presumptively was in a more secure position than was the prisoner in Boykin, who was not represented by counsel but whose right of appeal was upheld on the facts of that case. In the case at bar, if petitioner's representations of fact are true, he had a right to rely upon his attorney to perfect his appeal and the failure of both of his successive counsel to do so cannot be permitted to work a forfeiture of his right of review by this court, if we may by analogy apply the liberal view suggested by the Supreme Court, in Coppedge, p. 442, note 5 of 369 U.S., p. 919 of 82 S.Ct., supra, p. 407.

In the light of these holdings, we now note that in his brief, petitioner's counsel expressly disclaims that petitioner is proceeding under 18 U.S.C.A. rule 45(b).¹ He also repudiates any claim of excusable neglect, but positively asserts that this is not a case of neglect but of fraud; that he does not seek an enlargement of time, but asks only that effect be given to his timely and diligent effort to perfect his appeal. He asserts that, whatever may be the rule as to negligence of counsel, it is clear that fraud may vitiate the entire relationship. The distinction between a charge of neglect and a charge of fraud is emphasized by Dodd v. United States, 9 Cir., 321 F.2d 240 (1963), where a prisoner sought relief under 28 U.S. C.A. § 2255 because of an appointed attorney's failure to file notice of appeal although requested to do so. The court, at 243 of 321 F.2d pointed out that:

"Many of the grounds often asserted to sustain lack of effective assistance of counsel do not justify a hearing or entitle a petitioner to relief. Of such character are contentions as to the `competence of counsel.\'"

However, the court thereupon referred to Kennedy v. United States, 5 Cir., 259 F.2d 883 (1958), cert. denied 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, which

"* * * requires a showing of `misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client\'s interests * * *.\'"

Thus, it seems to us, Dodd recognizes the distinction between a charge as to the competency of counsel and a charge of fraud by counsel.

The government relies on United States v. Robinson, 361 U.S. 220, 80 S. Ct. 282, 4 L.Ed.2d 259. In that case the court pointed out that the single question presented was whether the filing of a notice of appeal in a criminal case, after expiration of the time prescribed in rule 37(a) (2), confers jurisdiction of the appeal...