Hollis v. U.S., No. 81-2184

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore ROSS and McMILLIAN; ROSS
Citation687 F.2d 257
PartiesHorace Edward HOLLIS, Appellant, v. UNITED STATES of America, Appellee.
Decision Date30 August 1982
Docket NumberNo. 81-2184

Page 257

687 F.2d 257
Horace Edward HOLLIS, Appellant,
v.
UNITED STATES of America, Appellee.
No. 81-2184.
United States Court of Appeals,
Eighth Circuit.
Submitted May 21, 1982.
Decided Aug. 30, 1982.

Page 258

John D. Evans, Jr., Lewis, Rice, Tucker, Allen & Chubb, St. Louis, Mo., for appellant.

Thomas E. Dittmeier, U. S. Atty., Edward L. Dowd, Jr., Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before ROSS and McMILLIAN, Circuit Judges, and ALSOP, * District Judge.

ROSS, Circuit Judge.

This is an appeal from the district court's 1 denial of Hollis' habeas petition filed pursuant to 28 U.S.C. § 2255. We reverse in part and affirm in part.

Hollis was indicted on June 1, 1979, on eleven counts of interstate transportation of forged securities, in federal district court in Delaware under 18 U.S.C. § 2314. Hollis consented to a transfer of the case to the Eastern District of Missouri pursuant to Rule 20 of the Federal Rules of Criminal Procedure.

On June 5, 1979, the government made an oral motion for a psychiatric examination, which motion was granted by the district court. On August 2, 1979, the district court reviewed the psychiatric report of Hollis' examination at the Springfield Medical Center and concluded that Hollis was competent. Also at the June 5 hearing, the district court accepted Hollis' pleas of guilty to five of the eleven counts. Pursuant to the plea agreement the government dismissed the other six counts. On August 20, 1979, Hollis was sentenced to five consecutive five-year sentences for a total sentence of twenty-five years.

On September 10, 1979, Hollis' attorney filed a notice of appeal. On January 14, 1981, this court dismissed the appeal for failure to file within ten days under Rule 4(b) of the Federal Rules of Appellate Procedure. United States v. Hollis, 647 F.2d 167 (8th Cir. 1981). Hollis filed this habeas action on February 3, 1981. The district court reviewed Magistrate David D. Noce's report and recommendation and dismissed the habeas petition.

On appeal Hollis argues: (1) that he was denied effective assistance of counsel due to his attorney's failure to file a timely appeal; (2) that he was denied effective assistance of counsel due to his attorney's failure to order an independent psychiatric examination; and (3) that his guilty plea was involuntary.

I. Untimely Appeal

Hollis argues he was denied effective assistance of counsel because his attorney failed to file a timely notice of appeal from the sentence and conviction, which failure resulted in a dismissal of the appeal. The district court denied the habeas petition because:

While the failure to file the notice of appeal within the required period of time violated Hollis' right to effective assistance of counsel, there is no prejudice to Hollis by this failure, because he does not allege what claims were not considered on appeal, other than those which were raised in the instant § 2255 proceeding and which have been found to be without merit. (Citation omitted.)

Page 259

Hollis argues that no showing of prejudice or likelihood of success on the merits need be made to show ineffective assistance of counsel for failure to file a timely appeal. We agree.

The standard established in this circuit is that "trial counsel fails to render effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances." United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977) (footnote and citation omitted). Additionally, petitioner must show that his attorney's failure prejudiced his defense. Id. at 666.

It is clear that

(t)he failure of counsel to take the simple steps required to file a notice of appeal when instructed by his client to do so would * * * (constitute) "such an extraordinary inattention to a client's interests as to amount to ineffective assistance of counsel, cognizable under Section 2255."

Williams v. United States, 402 F.2d 548, 552 (8th Cir. 1968) (citations omitted). Hollis and his attorney testified at the habeas hearing that Hollis had informed his attorney of his wish to appeal his sentence. Hollis' attorney stated that the delay in filing the notice of appeal was inadvertent. We agree with the district court that the attorney's failure to file a timely...

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65 practice notes
  • U.S. v. Vazque-Munoz, No. CR99-4057-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 28, 2006
    ...of his right to appeal, courts have not required a showing of prejudice or of likely success on appeal. See Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982) (quoting Robinson v. Wyrick, 635 F.2d 757, 758 (8th Cir.1981)); see Holloway, 960 F.2d at 1356-57 (same); Estes v. United Sta......
  • State ex rel. Flores v. State, No. 92-2114-W
    • United States
    • United States State Supreme Court of Wisconsin
    • May 25, 1994
    ...1003, 1012 (1985); see also, Clay v. Director, Juvenile Div., Dept. of Corr., 749 F.2d 427, 431 (7th Cir.1984); Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982), cert. denied, 459 U.S. 1221, 103 S.Ct. 1228, 75 L.Ed.2d 462 (1983). This also applies to the No Merit situation. The fai......
  • Harley v. United States, Case No. 1:14CV00051 SNLJ
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 29, 2014
    ...where the record reveals that the defendant was fully informed and knowingly and voluntarily pleaded guilty. See Hollis v. United States, 687 F.2d 257, 260 (8th Cir. 1982); Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir. 1990). A "valid guilty plea waives all nonjurisdictional obje......
  • Watson v. U.S., No. 13796.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 10, 1987
    ...of the usual theme in "ineffectiveness" cases, as the charged blunder is usually much more flagrant. See, e.g., Hollis v. United States, 687 F.2d 257 (8th Cir. 1982) (counsel's failure to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982) (counsel's failure to file brief with ap......
  • Request a trial to view additional results
65 cases
  • U.S. v. Vazque-Munoz, No. CR99-4057-MWB.
    • United States
    • United States District Courts. 8th Circuit. Northern District of Iowa
    • September 28, 2006
    ...of his right to appeal, courts have not required a showing of prejudice or of likely success on appeal. See Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982) (quoting Robinson v. Wyrick, 635 F.2d 757, 758 (8th Cir.1981)); see Holloway, 960 F.2d at 1356-57 (same); Estes v. United Sta......
  • State ex rel. Flores v. State, No. 92-2114-W
    • United States
    • United States State Supreme Court of Wisconsin
    • May 25, 1994
    ...1003, 1012 (1985); see also, Clay v. Director, Juvenile Div., Dept. of Corr., 749 F.2d 427, 431 (7th Cir.1984); Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982), cert. denied, 459 U.S. 1221, 103 S.Ct. 1228, 75 L.Ed.2d 462 (1983). This also applies to the No Merit situation. The fai......
  • Harley v. United States, Case No. 1:14CV00051 SNLJ
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • August 29, 2014
    ...where the record reveals that the defendant was fully informed and knowingly and voluntarily pleaded guilty. See Hollis v. United States, 687 F.2d 257, 260 (8th Cir. 1982); Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir. 1990). A "valid guilty plea waives all nonjurisdictional obje......
  • Watson v. U.S., No. 13796.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 10, 1987
    ...of the usual theme in "ineffectiveness" cases, as the charged blunder is usually much more flagrant. See, e.g., Hollis v. United States, 687 F.2d 257 (8th Cir. 1982) (counsel's failure to file appeal); Mylar v. Alabama, 671 F.2d 1299 (11th Cir. 1982) (counsel's failure to file brief with ap......
  • Request a trial to view additional results

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