Rodriquez v. United States

Decision Date09 January 1968
Docket NumberNo. 21410.,21410.
Citation387 F.2d 117
PartiesAdolpho RODRIQUEZ, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Adolpho Rodriquez, in pro. per.

John P. Hyland, U. S. Atty., Richard V. Boulger, Asst. U. S. Atty., Sacramento, Cal., for appellee.

Before JERTBERG and DUNIWAY, Circuit Judges, and WEIGEL, District Judge.


Following a jury trial, appellant was convicted on all counts of an eleven count indictment charging violations of the Federal Narcotics Law, and on June 20, 1963, was sentenced to the custody of the Attorney General for a period of twenty years on each count, the sentences to run concurrently.

On October 31, 1963, appellant filed a motion in this court which, in substance, was a request to permit appellant to file an appeal from the district court judgment after the time set by Rule 37 (a) Federal Rules of Criminal Procedure had expired, or, in the alternative, for a writ of habeas corpus. On November 18, 1963, this court denied the motion for lack of jurisdiction, citing United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960), and refused to treat the issue as an application for a writ of habeas corpus.

On June 27, 1966, appellant filed a petition in the district court under the provisions of 28 U.S.C. § 2255, requesting the judgment of conviction be set aside "so that he would be restored to the status of one whose sentence has just been imposed and who has ten (10) days within which to institute a direct appeal." The petition was denied without a hearing.

Appellant filed a timely appeal and prosecutes his appeal pro se and in forma pauperis.

In denying the petition the district court stated:

"Oral notice of appeal was given at the time of sentencing, but petitioner\'s trial counsel failed to file a written notice of appeal, as provided by Federal Criminal Procedure Rule 37(a). Petitioner alleges: `Thus, when trial counsel failed to file a written notice of appeal * * * with the knowledge that petitioner could not comply with Rule 37(a) (1), he did with intent and knowledge deprive petitioner of his right to appeal by fraud.\' "The foregoing statement is petitioner\'s sole ground for relief. He does not assert that the failure to appeal resulted in the loss of a basic right, constitutional or otherwise, for which loss he is entitled to a remedy under § 2255. Petitioner has not, beyond the above conclusory

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9 cases
  • Com. v. Lantzy
    • United States
    • Pennsylvania Superior Court
    • April 13, 1998
    ...disclose the "nature of the error and prejudice which he proposes by appeal to correct" in order to get relief. Rodriquez v. United States, 387 F.2d 117, 118 (9th Cir.1967), rev'd, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). In reversing our affirmance, the Supreme Court As this Cou......
  • People v. Edwards
    • United States
    • Illinois Supreme Court
    • September 20, 2001
    ...340 (1969). In Rodriquez, the defendant was convicted following a jury trial on several narcotics charges (see Rodriquez v. United States, 387 F.2d 117 (9th Cir.1967)). The defendant's trial counsel subsequently failed to submit a notice of appeal within the appropriate time period. Althoug......
  • People v. Boivin
    • United States
    • Colorado Court of Appeals
    • March 19, 1981
    ...the "meritorious grounds" requirement were from the federal courts. Among those cases was, in addition to Fennell, Rodriquez v. United States, 387 F.2d 117 (9th Cir. 1967), the very decision which was, as we have discussed, later reversed by the United States Supreme ...
  • Rodriquez v. United States, 749
    • United States
    • U.S. Supreme Court
    • June 2, 1969 appeal. The District Court for the Northern District of California denied petitioner's application and the Ninth Circuit affirmed. 387 F.2d 117 (1967). Both courts relied on a Ninth Circuit rule requiring applicants in petitioner's position to disclose what errors they would raise on app......
  • Request a trial to view additional results

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