Dillane v. United States

• Decision Date: 17 June 1965
• Docket Number: No. 19023.,19023.
• Parties: Richard J. DILLANE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 354, 350 F.2d 732 (1965)

Richard J. DILLANE, Appellant, v. UNITED STATES of America, Appellee.

No. 19023.

United States Court of Appeals District of Columbia Circuit.

Argued February 19, 1965.

Decided June 17, 1965.

Mr. Thomas J. Schwab, Washington, D. C., with whom Mr. David B. Isbell, Washington, D. C., was on the brief, for appellant.

Mr. Allan M. Palmer, Asst. U. S. Atty. with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the brief, for appellee.

Mr. John A. Terry, Asst. U. S. Atty., also entered an appearance for appellee.

Before WASHINGTON, WRIGHT and McGOWAN, Circuit Judges.

PER CURIAM:

Although the procedural situation is somewhat confused because of the multiple and alternative nature of appellant's motions in the District Court, what we consider to be before us is essentially an appeal from that court's action in denying leave to appeal in forma pauperis because the petition was filed after the time had expired in which a notice of appeal from a criminal conviction may be filed. Rule 37(a) (2), Fed. R.Crim.P. There being no issue of fact as to the failure to file an appeal within the prescribed time, the District Court's action was correct under United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), and we affirm it. This affirmance is, however, without prejudice to appellant's filing in due course a new motion under 28 U.S.C. § 2255 seeking the vacation and re-entry of his sentence.

The reconciliation of Robinson with the seeming equities of the convicted defendant whose failure to appeal in the 10-day period is not his fault has elicited varying responses. Desmond v. United States, 333 F.2d 378 (1st Cir. 1964); Boruff v. United States, 310 F.2d 918 (5th Cir. 1962); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Dodd v. United States, 321 F.2d 240 (9th Cir. 1963). Cf. Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). Within our own circuit there has been a comparable disparity of approach. Compare Paulding v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964), with Carrell v. United States, 118 U.S.App.D.C. 264, 335 F.2d 686 (1964). In the record before us there appear to be allegations that appellant's counsel, retained for his defense at the trial,¹ never apprised him of his right to file a notice of appeal, or of the time within which that right must be exercised. If true, and if unexplained, this impresses us as such an extraordinary inattention to a client's interests as to amount to ineffective assistance of counsel cognizable under Section 2255. A motion under that statute containing such allegations, and otherwise entertainable by the court, would entitle appellant to a hearing. If the court should find the facts to be as alleged, it should, by the expedient of vacating and resentencing,² restore appellant to the status of one on whom sentence has just been imposed and who has 10 days in which to institute a direct appeal. Whether there are in fact grounds for such an appeal...