McKinney v. United States
Decision Date | 05 November 1968 |
Docket Number | No. 25677.,25677. |
Citation | 403 F.2d 57 |
Parties | Jessey Kenneth McKINNEY, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Bruce R. Jacob, Thomas E. Baynes, Jr., Atlanta, Ga., for appellant.
Jacob Bumstead, Charles K. Ruth, Asst. U. S. Attys., Beaumont, Tex., Wm. Wayne Justice, U. S. Atty., Eastern Dist. of Texas, Tyler, Tex., Richard Brooks Hardee, U. S. Atty., Eastern Dist. of Texas, Tyler, Tex., for appellee.
Before BELL and MORGAN, Circuit Judges, and GUINN, District Judge.
This appeal arises from a denial of a motion under 28 U.S.C.A. § 2255 to vacate a sentence of 20 years received upon conviction of 18 U.S.C.A. § 2113(a): unlawfully entering a bank with intent to commit larceny. In his motion, filed on September 12, 1967, and denied without an evidentiary hearing on October 10, 1967, appellant asserted matters going to the validity of his trial as well as a claim that he was denied the right to appeal. Only the latter question is presented to us.
The record discloses that appellant was convicted by a jury on July 5, 1966. He was sentenced on that same day and at sentencing said, "I would like to appeal my case." On July 8, 1966, appellant's court-appointed counsel filed a motion for a new trial. On July 12, 1966, appellant escaped from federal confinement in a Texas state jail and was apprehended the next day in Tennessee. He remained in Tennessee in either federal or state custody until August 12, 1966, when he was delivered to the United States Penitentiary at Leavenworth, Kansas. There is some suggestion that he was held in Tennessee pending disposition of charges brought against him there. The District Court, on July 26, 1966, denied appellant's motion for a new trial.
After this ruling, the court-appointed attorney made no further efforts on appellant's behalf. The attorney explained in a letter contained in the government's brief before us:
On the other hand, new counsel now representing appellant states in his brief that former counsel advised him over the telephone that no appeal was taken because appellant had escaped and was not available for an interview. He also stated, according to new counsel, that no appeal was taken for the further reason that he was under the impression that an escapee lost his right to appeal if the escape was within the time for taking an appeal. Cf. Vernon's Ann.C.C.P. Art. 44.09.
The questions presented are (1) whether appellant lost his right to appeal by virtue of the escape, or (2), by abandoning the appeal. We answer the first question in the negative. In the unsettled condition of the record, the second question cannot be fairly answered and remand is indicated.
It is settled that an appeal from a judgment of a federal district court is a matter of right. Coppedge v. United States, 1962, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21; Brewen v. United States, 5 Cir., 1967, 375 F.2d 285. Moreover there is some authority for the proposition that federal appeals should not ordinarily be dismissed even where the appellant flees the jurisdiction. Eisler v. United States, 1949, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897, (appellant fled United States); Smith v. United States, 1876, 94 U.S. 97, 24 L.Ed. 32 (appellant escaped); Bonahan v. State of Nebraska, 1887, 125 U.S. 692, 8 S.Ct. 1390, ...
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