Wayne v. Wyrick, No. 80-1927

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore LAY, Chief Judge, and STEPHENSON and ARNOLD; ARNOLD; LAY
Citation646 F.2d 1268
PartiesLarry WAYNE, Appellant, v. Donald W. WYRICK, Warden, Missouri State Penitentiary, and John D. Ashcroft, Attorney General of Missouri, Appellees.
Docket NumberNo. 80-1927
Decision Date02 June 1981

Page 1268

646 F.2d 1268
Larry WAYNE, Appellant,
v.
Donald W. WYRICK, Warden, Missouri State Penitentiary, and
John D. Ashcroft, Attorney General of Missouri, Appellees.
No. 80-1927.
United States Court of Appeals,
Eighth Circuit.
Submitted Feb. 9, 1981.
Decided April 20, 1981.
Rehearing Denied June 2, 1981.

Page 1269

Mary E. Fiser, Clayton, Mo., for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, Mo., for appellees.

Before LAY, Chief Judge, and STEPHENSON and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Eastern District of Missouri 1 entered on August 21, 1980, denying relief under 28 U.S.C. § 2254. The appeal presents one issue: Whether petitioner's counsel was constitutionally ineffective for failing to perfect a direct appeal of petitioner's conviction after petitioner escaped from custody.

Larry Wayne was convicted of second-degree murder in a Missouri state court on June 25, 1976, and was sentenced to life imprisonment on August 2, 1976. Petitioner's counsel filed a notice of appeal on August 12, 1976. Soon after the notice was filed, Wayne escaped, and on September 20, 1976, a capias warrant was issued for his arrest. He remained at large until November 10, 1977.

On April 15, 1977, petitioner's direct appeal was dismissed by the Court of Appeals of Missouri for failure to show cause why its rules had not been followed. His retained counsel had taken no action to perfect the appeal. He had not requested leave to withdraw as plaintiff's counsel, nor did he inform the Missouri Court of Appeals of Wayne's escape. Petitioner maintains that his counsel knew of his desire to pursue his direct appeal, and that counsel knew his mother's address but did not contact her about the appeal either before or after it was dismissed.

In May of 1978, plaintiff filed a motion to vacate his sentence in the Missouri trial court pursuant to Missouri Supreme Court Rule 27.26. Along with other arguments, Wayne raised the issue of his counsel's failure to perfect his appeal. The motion was denied by the trial court without a hearing. On appeal the Missouri Court of Appeals denied the motion on the ground that "(a) defendant who escapes custody during post-trial proceedings relinquishes his right to appeal." Wayne v. State, 579 S.W.2d 780, 781 (Mo.App.1979). Wayne's request for rehearing and/or transfer to the Supreme Court of Missouri was denied on June 15, 1979. He later filed a Motion to Recall Mandate in the Missouri Court of Appeals, and it also was denied.

Petitioner asks this Court, in the alternative, either to grant his petition for habeas corpus relief by reinstating his right to a direct appeal in the Missouri state courts, or to set aside the judgment of the federal district court and remand the cause for an evidentiary hearing on the issue of ineffective assistance of counsel. Under the applicable law and the facts of this case, we can do neither.

The right to appeal a criminal conviction in Missouri is statutory. Mo.Rev.Stat. § 547.070. Regarding a lawyer's responsibility to perfect an appeal from a criminal conviction, the Missouri Court of Appeals has said that mere failure to take an appeal does not constitute ineffective assistance of counsel. "Only where the defendant wishes to appeal and his attorney either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel." Sampson v. State, 570 S.W.2d 337 (Mo.App.1978). This Court's standard for

Page 1270

judging the competency of counsel is as follows:

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that he was prejudiced thereby.

Benson v. United States, 552 F.2d 223, 224 (8th Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977)....

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14 practice notes
  • Buckley v. Lockhart, No. 88-2813
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 20, 1989
    ...him pursuant to the conviction." Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970). In Wayne v. Wyrick, 646 F.2d 1268 (8th Cir.1981), we held, relying on Molinaro, that a prisoner who was in an escape status during his appeal period could not maintain an in......
  • U.S. v. Eighty Three Thousand Three Hundred Twenty Dollars ($83,320) in U.S. Currency and Forty Dollars ($40) in Canadian Currency, No. 80-1834
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 29, 1982
    ...States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949); United States v. Dawson, 350 F.2d 396, 397 (6th Cir. 1965); Wayne v. Wyrick, 646 F.2d 1268 (8th Cir. 1981); Government of Virgin Islands v. James, 621 F.2d 588 (3rd Cir. 1980); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir. We concl......
  • People v. Brown, No. 08CA1592.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 4, 2010
    ...Katz v. United States, 920 F.2d 610, 613–14 (9th Cir.1990); Dziurgot v. Luther, 897 F.2d 1222, 1223–24 (1st Cir.1990); Wayne v. Wyrick, 646 F.2d 1268, 1270–71 (8th Cir.1981); Johnson v. Caldwell, 458 F.2d 505, 505 (5th Cir.1972).III. Conclusion The order denying Rule 35 relief is...
  • Perko v. Bowers, No. 90-2227
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 31, 1991
    ...from the court's power and process and remains at large during the pendency of his appeal forfeits his right to appeal." Wayne v. Wyrick, 646 F.2d 1268, 1270 (8th Cir.1981). Our prior cases deal only with the effect of the rule on criminal appeals, and the Supreme Court has yet to define th......
  • Request a trial to view additional results
14 cases
  • Buckley v. Lockhart, No. 88-2813
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 20, 1989
    ...him pursuant to the conviction." Molinaro v. New Jersey, 396 U.S. 365, 366, 90 S.Ct. 498, 499, 24 L.Ed.2d 586 (1970). In Wayne v. Wyrick, 646 F.2d 1268 (8th Cir.1981), we held, relying on Molinaro, that a prisoner who was in an escape status during his appeal period could not maintain an in......
  • U.S. v. Eighty Three Thousand Three Hundred Twenty Dollars ($83,320) in U.S. Currency and Forty Dollars ($40) in Canadian Currency, No. 80-1834
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 29, 1982
    ...States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 (1949); United States v. Dawson, 350 F.2d 396, 397 (6th Cir. 1965); Wayne v. Wyrick, 646 F.2d 1268 (8th Cir. 1981); Government of Virgin Islands v. James, 621 F.2d 588 (3rd Cir. 1980); Joensen v. Wainwright, 615 F.2d 1077 (5th Cir. We concl......
  • People v. Brown, No. 08CA1592.
    • United States
    • Colorado Court of Appeals of Colorado
    • March 4, 2010
    ...Katz v. United States, 920 F.2d 610, 613–14 (9th Cir.1990); Dziurgot v. Luther, 897 F.2d 1222, 1223–24 (1st Cir.1990); Wayne v. Wyrick, 646 F.2d 1268, 1270–71 (8th Cir.1981); Johnson v. Caldwell, 458 F.2d 505, 505 (5th Cir.1972).III. Conclusion The order denying Rule 35 relief is...
  • Perko v. Bowers, No. 90-2227
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 31, 1991
    ...from the court's power and process and remains at large during the pendency of his appeal forfeits his right to appeal." Wayne v. Wyrick, 646 F.2d 1268, 1270 (8th Cir.1981). Our prior cases deal only with the effect of the rule on criminal appeals, and the Supreme Court has yet to define th......
  • Request a trial to view additional results

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