Desmond v. United States, 6135

• Decision Date: 25 June 1964
• Docket Number: No. 6135,6218.,6135
• Citation: 333 F.2d 378
• Parties: George C. DESMOND, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee (two cases).
• Court: U.S. Court of Appeals — First Circuit

333 F.2d 378 (1964)

George C. DESMOND, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee (two cases).

Nos. 6135, 6218.

United States Court of Appeals First Circuit.

June 25, 1964.

Loyd M. Starrett, Boston, Mass., with whom Edwin H. Amidon, Jr., and Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellant.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

The appellant and one Ivory Parker were indicted in March 1962 in two counts for violations of the federal narcotics laws, specifically Title 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. The court below appointed separate counsel for each defendant, and in June 1962 they were tried together by jury on pleas of not guilty. Both were found guilty as charged, and each was sentenced forthwith to concurrent 5-year terms. Neither appealed.

In November 1962 motions by Desmond for a trial transcript and for a certified copy of docket entries and for leave to proceed in forma pauperis supported by affidavit were denied. But in February 1963 the court below, pursuant to Title 28 U.S.C. § 1915, gave Desmond leave to proceed in forma pauperis and at the same time ordered that Desmond be provided at government expense with a transcript of his trial consisting of the testimony and the charge. Approximately two months thereafter, on April 17, 1963, Desmond filed a motion under Title 28 U.S.C. § 2255 to vacate and set aside his sentence on three grounds, insufficiency of the evidence to support his conviction,¹ prejudicial remarks of government's counsel in his argument to the jury and errors in the court's charge. On May 1, 1963, the court below without hearing denied a request by Desmond for appointment of counsel and denied his motion on the ground that the motion and the transcript conclusively showed that he was not entitled to relief. In its accompanying memorandum the court said that a motion under § 2255 was not a substitute for an appeal and that the conduct of government counsel at the trial and errors of law in the charge, while reviewable on appeal, were not open to collateral attack by motion to vacate, set aside or correct sentence. As the case then stood we think the action of the court was correct.

But on timely motion for reconsideration the petitioner asserted a new ground for relief, to wit, failure of his court appointed counsel to appeal on his behalf after stating that "he had filed all the necessary motions to afford me an appeal." On May 22, 1963, the court denied the motion for reconsideration, stating in an accompanying memorandum that to prevail "the petitioner must show not only that he was deprived of the right of appeal but also that there was plain reversible error in the trial" and that the record "does not disclose such plain error." The court below directed the clerk to file notice of appeal for the petitioner "forthwith" (the petitioner himself also filed notice of appeal) and granted him leave to prosecute it in forma pauperis.²

Upon application to this court for appointment of counsel to prosecute the above appeal and the one mentioned in footnote 2, the members of the court separately examined the file and the transcript, and, entertaining doubt with respect to the propriety of the action taken by the court below, appointed counsel to prosecute both appeals.

The appellant's allegation in his motion for reconsideration to the effect that his counsel told him that an appeal had been taken when in fact it had not, added a new dimension to the case.

To confer appellate jurisdiction an appeal must be taken within the ten-day time limitation of Criminal Rule 37(a) (2). United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). And: "So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed. 1982 (1947).³ The Court, however, in the above case 332 U.S. at page 180, 67 S.Ct. at page 1591, quoting Chief Justice Hughes in Bowen v. Johnston, 306 U.S. 19, 59 S.Ct. 442, 83 L.Ed. 455 said: "* * * the rule which requires resort to appellate procedure for the correction of errors `is not one defining power but one which relates to the appropriate exercise of power.'" Therefore, the Court continued, the rule is "`not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'"

A "very tentative classification of categories in which habeas corpus has not been deemed beyond the power of federal courts to entertain" is to be found in Mr. Justice Frankfurter's dissenting opinion in Sunal v. Large, 332 U.S. at pages 185 and 186, 67 S.Ct. at page 1594. No useful purpose would be served by listing those categories here. It will suffice to say that in view of the emphasis in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962), on the importance and value of the right of appeal in criminal cases, and at least the implications of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), we think loss of the right to appeal because of deception by counsel belongs in the category, for in that situation the need for the remedy afforded by motion under § 2255 is all too apparent.⁴ See Dodd v. United States, 321 F.2d 240 (C. A.9, 1963). That is to say, we think a federal prisoner who has been effectively deprived of his right to appeal by deception practiced upon him by his counsel is entitled to present by motion under § 2255 errors ordinarily cognizable only on appeal.

Let it be emphasized at this point, however, that it by no means follows that a bare allegation such as that made in the case at bar automatically entitles a prisoner who has not appealed to what is in effect an appeal with the possibility of a new trial perhaps resulting in acquittal. Prison gates do not swing open so easily. The path to appellate relief by this route is steep and narrow.

In the first place applications for relief such as this must be made promptly. It will not do for a prisoner to wait until government witnesses have become unavailable, as by death, serious illness or absence from the country, or until the memory of available government witnesses has faded. It will not even do for a prisoner to wait any longer than is reasonably necessary to prepare appropriate moving papers, however inartistic, after discovery of the deception practiced upon him by his attorney, for otherwise the strong public policy favoring prompt appeals in criminal cases would be frustrated. Indefinite delay in seeking appellate relief can only produce needless uncertainty and confusion and moreover, if a defendant who has not appealed can later whenever he chooses attack his sentence by motion under § 2255 on grounds ordinarily open only on appeal, litigation in criminal cases will be interminable.

In the second place, it must appear that an appeal would not have been futile. The district court in this case said that the petitioner had to show "plain reversible error" at his trial. There is authority for this requirement, to which the court below referred in its memorandum, such as Mitchell v. United States, 103 U.S.App. D.C. 97, 254 F.2d 954 (1958), cert. denied, 371 U.S. 838, 83 S.Ct. 64, 9 L.Ed.2d 73 (1962). We think, however, in the light shed by recent decisions of the Supreme Court of the United States, that an applicant for relief such as this does not bear so heavy a burden, or indeed, any burden at all.

In Ellis v. United States, 356 U.S. 674, 675, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958), the Court held that the request of an indigent for leave to appeal in forma pauperis "must" be allowed unless the issues raised...