McKinney v. United States, No. 25677.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBELL and MORGAN, Circuit , and GUINN
Citation403 F.2d 57
Docket NumberNo. 25677.
Decision Date05 November 1968
PartiesJessey Kenneth McKINNEY, Appellant, v. UNITED STATES of America, Appellee.

403 F.2d 57 (1968)

Jessey Kenneth McKINNEY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 25677.

United States Court of Appeals Fifth Circuit.

November 5, 1968.


403 F.2d 58

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.

GRIFFIN B. BELL, Circuit 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:

"I did not hear anything further from Jessie Kenneth McKinney concerning appeal of his case. As a matter of fact, I did not know the location of Mr. McKinney as he had escaped from the Harrison County Jail while his motion for new trial was pending. The only information that I had concerning McKinney at all was the fact that he had escaped from jail and had been picked up during the latter part of July or early August of 1966. He made no effort to communicate to me that he wanted his case appealed,
...

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19 practice notes
  • United States v. Niebla-Ayala, EP-18-CR-3067-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 5, 2018
    ...established that this is the case." United States v. Harris , 434 F.3d 767, 770–71 (5th Cir. 2005) (quoting McKinney v. United States , 403 F.2d 57, 59 (5th Cir. 1968) ). Accordingly, the Fifth Circuit "construe[s] appeal waivers narrowly, and against the government." United States v. Palme......
  • U.S. v. Melancon, No. 91-4627
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 3, 1992
    ...waiver as "an intentional relinquishment or abandonment of a known right or privilege." ) (emphasis added). Cf. McKinney v. United States, 403 F.2d 57, 59 (5th Cir.1968) ("the right to appeal should not be considered as having Page 572 been waived or abandoned except where it is clearly est......
  • Braun v. Powell, No. 97-C-0423.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • December 13, 1999
    ...(escape does not constitute knowing decision to forego state remedies and thus does not result in waiver); McKinney v. United States, 403 F.2d 57, 59 (5th Cir.1968) (more than mere escape needed to establish waiver). Waiver is "an intentional relinquishment or abandonment of a known right."......
  • People v. Vargas, No. E009786
    • United States
    • California Court of Appeals
    • March 5, 1993
    ...should not be considered waived or abandoned except where the record clearly establishes it. (McKinney v. United States (5th Cir.1968) 403 F.2d 57, Here the defendant's waiver of the right to appeal was very broad and general. The change of plea form simply states, "I waive my appeal rights......
  • Request a trial to view additional results
19 cases
  • United States v. Niebla-Ayala, EP-18-CR-3067-KC
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • December 5, 2018
    ...established that this is the case." United States v. Harris , 434 F.3d 767, 770–71 (5th Cir. 2005) (quoting McKinney v. United States , 403 F.2d 57, 59 (5th Cir. 1968) ). Accordingly, the Fifth Circuit "construe[s] appeal waivers narrowly, and against the government." United States v. Palme......
  • U.S. v. Melancon, No. 91-4627
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 3, 1992
    ...waiver as "an intentional relinquishment or abandonment of a known right or privilege." ) (emphasis added). Cf. McKinney v. United States, 403 F.2d 57, 59 (5th Cir.1968) ("the right to appeal should not be considered as having Page 572 been waived or abandoned except where it is clearly est......
  • Braun v. Powell, No. 97-C-0423.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • December 13, 1999
    ...(escape does not constitute knowing decision to forego state remedies and thus does not result in waiver); McKinney v. United States, 403 F.2d 57, 59 (5th Cir.1968) (more than mere escape needed to establish waiver). Waiver is "an intentional relinquishment or abandonment of a known right."......
  • People v. Vargas, No. E009786
    • United States
    • California Court of Appeals
    • March 5, 1993
    ...should not be considered waived or abandoned except where the record clearly establishes it. (McKinney v. United States (5th Cir.1968) 403 F.2d 57, Here the defendant's waiver of the right to appeal was very broad and general. The change of plea form simply states, "I waive my appeal rights......
  • Request a trial to view additional results

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