US v. Ferrell

• Decision Date: 30 November 1989
• Docket Number: Crim. No. 84-00066.
• Parties: UNITED STATES of America v. Marion FERRELL, a/k/a "Zoom".
• Court: U.S. District Court — Eastern District of Pennsylvania

730 F. Supp. 1338

UNITED STATES of America v. Marion FERRELL, a/k/a "Zoom".

Crim. No. 84-00066.

United States District Court, E.D. Pennsylvania.

November 30, 1989.

Glenn Bronson, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.

Neil E. Jokelson, Philadelphia, Pa., for Ferrell.

MEMORANDUM AND ORDER

DITTER, District Judge.

Magistrate Naythons filed his Report and Recommendation concerning the defendant's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 on July 21, 1989. Although no formal objections or exceptions to the Report and Recommendation were filed, the defendant wrote several letters to the court during the pendency of his petition and following the issuance of the Report and Recommendation in which he reiterated many of the claims raised in his petition, but also alleged for the first time that his attorney interfered with his right to appeal and with his right to testify at trial on his own behalf. Because these allegations were not presented to the magistrate in the defendant's habeas corpus petition, they were not addressed in the Report and Recommendation. I will therefore discuss and dispose of these additional claims. In all other respects, I will adopt the magistrate's Report and Recommendation.

The defendant was convicted following a jury trial on June 21, 1984, of one count of conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846, and with four counts of distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1). Defendant's post-trial motions were denied on July 17, 1985. Defendant's attorney filed a notice of appeal of the conviction on August 7, 1985. He filed memoranda in support of the appeal in November of 1985. The appeal was denied on February 24, 1986. On June 9, 1986, defendant, acting pro se, filed a motion to reduce or modify his sentence pursuant to Fed.R.Crim.P. 35. The motion was denied on June 13, 1986. On March 10, 1987, the Third Circuit affirmed my denial of the Rule 35 motion.

Defendant maintains in a letter to me dated July 31, 1989, that "my attorney neglected to inform me or my family my appeal had been lost.... and neglected to reserve my rights to file a notice of review to the Third Circuit (10 days after decision).... and neglected to reserve my rights to file a notice of Appeal to the United States Supreme Court (20 days after decision)." It is unclear exactly to which "appeal" or right to Third Circuit review the defendant is referring: the denial of his post-trial motions; the affirmance of his conviction on appeal to the Third Circuit; or the denial of his Rule 35 motion. However, it makes no difference to which event the defendant may be referring: his attorney's alleged failure to act did not amount to ineffective assistance of counsel. Each of the contentions raised in defendant's post-trial motions was re-addressed by his attorney in the appeal of defendant's conviction; hence, any alleged failure by the attorney to inform the defendant or his family that I had denied those motions was no more than a harmless oversight. The defendant was no longer represented by counsel when his Rule 35 motion was filed. He filed the motion himself and also filed a pro se appeal to the Third Circuit of my decision refusing to reduce his sentence. His appeal was denied. The failure to file a timely petition for writ of certiorari with respect to the Rule 35 motion can only be attributed to the defendant, and not to his former counsel.¹

The only possibly cognizable issue raised in defendant's letter of July 31, 1989, is whether his trial attorney's alleged failure to inform him that the appeal of his conviction to the Third Circuit had been denied, thereby preventing the timely filing of a petition for writ of certiorari, would constitute ineffective assistance of counsel. I conclude that it would not. There is no federal constitutional right to appeal a criminal conviction to the Supreme Court. "A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor." Supreme Court Rule 17; see Heckler v. Edwards, 465 U.S. 870, 876, 104 S.Ct. 1532, 1536, 79 L.Ed.2d 878 (1984). There is also no constitutional right to counsel to pursue an application for review in the Supreme Court. Ross v. Moffitt, 417 U.S. 600, 617, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974). See also Gustave v. United States, 627 F.2d 901, 906 (9th Cir.1980) ("There is no requirement that an attorney appeal issues that are clearly untenable"). In Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475...