Fennell v. United States, 7870.

• Decision Date: 07 January 1965
• Docket Number: No. 7870.,7870.
• Parties: Calvin FENNELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

339 F.2d 920 (1965)

Calvin FENNELL, Appellant, v. UNITED STATES of America, Appellee.

No. 7870.

United States Court of Appeals Tenth Circuit.

January 7, 1965.

John J. Coates, Jr., Oklahoma City, Okl., for appellant.

Phillips Breckinridge, Asst. U. S. Atty., Tulsa, Okl. (John M. Imel, U. S. Atty., Tulsa, Okl., on the brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and SETH, Circuit Judges.

SETH, Circuit Judge.

The appellant filed a motion under 28 U.S.C.A. § 2255, seeking to vacate and set aside his conviction of conspiracy for the illegal purchase and sale of narcotics. He asserted that the indictment failed to charge the conspiracy, and secondly that appellant had no proper representation following his sentencing. This asserted failure of his retained attorney is based on the single proposition that no appeal was taken from the conspiracy conviction. The trial court denied appellant's motion, 229 F.Supp. 451 and this appeal was taken.

The trial court appointed an attorney for appellant and a hearing was commenced on the motion. The court then held that it would be necessary for the movant to show "plain error" during the original trial as a prerequisite to the granting of any relief on the motion. The court ordered that appellant be furnished a record of the trial, and granted time to his attorney to examine it and to advise the court of the errors upon which he would rely. Appellant's attorney filed an Assignment of Errors which asserted a failure by the court during the original trial proceedings to grant the defendant's motion for a directed verdict of acquittal and secondly, prejudicial comments made by the court to the jury in answer to several questions from the jury during the time it was deliberating. The trial court without further hearings then ruled that the appellant had shown no plain error, indicated that the points had previously been considered, and if not they were without basis. Appellant's motion was thereupon denied. The trial court made a finding that the appellant had made no intentional relinquishment of his right of appeal. The court further found he had requested his retained attorney during the course of the original trial to file an appeal in the event he was convicted. Appellant and his trial attorney testified below.

The appellant filed a previous motion under § 2255 asserting that there was insufficient evidence; a hearing was had and appellant testified. Relief was denied and we affirmed, 313 F.2d 941 (10th Cir.). Thereafter appellant filed a second motion asserting improper communication between the judge and the deliberating jury. The trial court found no improper communications, but stated if it were otherwise the matter would be cognizable only on an appeal. Appellant then commenced this proceeding based primarily on a failure to be properly represented.

The appellant here asserts two principal grounds for his appeal, the first being that he was not granted an adequate hearing by the trial court in this proceeding, and secondly that the trial court in requiring the showing of plain error in the original trial adopted the wrong test or standard to be applied to the motion.

If the trial court was correct in requiring that the appellant indicate error in the original trial proceedings as a condition on the granting of relief under his motion, appellant's point of inadequate hearing has no merit. Following the initial hearing and following the application of the plain error rule, the issues before the trial court were questions of law and not of fact; consequently the hearing which had theretofore been held was adequate. As indicated above, the record shows that the appellant had retained counsel during the course of the original trial. In the hearing below the appellant testified he had requested this counsel to file an appeal in the event of a conviction. No such appeal was filed, and in the hearing below, the attorney testified he had no recollection of any request that an appeal be filed. At the conclusion of the hearing, the court below made the finding that appellant had not intentionally foregone his appeal.

Appellant urges that the trial court should have applied the same test in this proceeding as it would have applied had a timely application been made for an appeal in forma pauperis. Appellant urges further that this court should follow Desmond v. United States, 333 F.2d 378 (1st Cir.), which held under the circumstances there present that the Government had the burden of showing that appellate relief would be futile. In this cited case, the petitioner asserted that his court appointed counsel had failed to initiate an appeal after representing to the petitioner that all the necessary appeal papers had been filed.

It is clear that an appeal is a matter of right under the decisions of the Supreme Court in Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21, and Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442. The Supreme Court has also stated that the defendant must comply with the time limitations provided for the various procedural steps, and specifically that a timely notice of appeal must be filed.

The time for the filing of a notice of appeal under Rule 37 of the Federal Rules of Criminal Procedure is a jurisdictional matter. We have held that the taking of an appeal within the prescribed time is "mandatory" and "jurisdictional." Yates v. United States, 308 F.2d 737 (10th Cir.); Peterkin v. United States, 311 F.2d 219 (10th Cir.); Wilkinson v. United States, 278 F.2d 604 (10th Cir.), cert. den. 363 U.S. 829, 80 S.Ct. 1600, 4 L.Ed.2d 1524.

The Supreme Court has held that the time limitations for the filing of notice of appeal cannot be extended by the court even in instances of excusable neglect. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. The Supreme Court in Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760, however, held that a written communication which could be considered as a notice of appeal was timely although it was delayed in the mail. The dissenting Justices in the cited case would have decided the issue on the basis that the appellant, by lodging his "notice" with the prison officials, had complied with the rule. We do not have before us an instance of such an attempted written notice of appeal made within the prescribed time period, nor do we have the issues surrounding a verbal request for appeal which were considered by this court in Peoples v. United States, 324 F.2d 689, and 337 F.2d 91 (10th Cir.). However in this last cited case, there was also present the issue as to whether or not the representation by the accused's retained counsel was so inadequate as to cast upon the court the burden to protect the defendant's right of appeal. The defendant there asserted during the course of the hearing on the motion under § 2255 that he had relied upon his retained counsel to perfect his appeal, but none was filed. This court there denied relief as no proper notice of appeal had been filed.

The case at bar is no more than a request for permission to make a late filing of a notice of appeal. There are no additional factors by way of deceit or fraud practiced upon the accused by his attorney or anyone else. Appellant nevertheless urges that Desmond v. United States, 333 F.2d 378 (1st Cir.), and Calland v. United States, 323 F.2d 405 (7th Cir.), should be followed here. In Callan...