Williams v. United States

• Decision Date: 31 October 1968
• Docket Number: No. 19215.,19215.
• Citation: 402 F.2d 548
• Parties: Horace Edward WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

402 F.2d 548 (1968)

Horace Edward WILLIAMS, Appellant, v. UNITED STATES of America, Appellee.

No. 19215.

United States Court of Appeals Eighth Circuit.

October 31, 1968.

Harvey L. Zuckman, St. Louis, Mo., for appellant.

James M. Gordon, Asst. U. S. Atty., St. Louis, Mo., for appellee, Veryl L. Riddle, U. S. Atty., St. Louis, Mo., was on the brief.

Before VAN OOSTERHOUT, Chief Judge, and BLACKMUN and LAY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This is an in forma pauperis appeal from the final order of the United States District Court for the Eastern District of Missouri filed October 20, 1967, denying Horace Edward Williams' motion challenging the validity of his sentence pursuant to 28 U.S.C.A. § 2255 on the ground of deprivation of effective assistance of counsel following conviction and sentencing leading to the loss of his right to appeal. The District Court also certified that the appeal from its order would be without merit and denied Williams' leave to appeal in forma pauperis. On Williams' motion, leave to appeal in forma pauperis was granted and the clerk of this court was ordered to docket the appeal. This court further ordered that this cause be remanded to the District Court "for a plenary hearing on the issue of whether Williams knowingly and willingly waived his right to appeal." The trial court held the required plenary hearing and provided this court with a transcript of the hearing but made no findings of fact.

Williams was tried by a jury on a two-count indictment, the first count charging an unlawful purchase of heroin in violation of 26 U.S.C.A. § 4704(a), and the second count charging an unlawful sale of heroin in violation of 26 U.S. C.A. § 4705(a). He was found guilty on both counts on May 1, 1964, and was sentenced to ten years imprisonment on each count to be served concurrently, but to be consecutive to a five-year sentence imposed by a state court on a state charge. Defendant's motion for judgment n. o. v. and alternatively for a new trial was overruled on May 26, 1964. The next record entry is an order dated and filed September 16, 1964, denying Williams' motion for leave to file notice of appeal. Such denial was upon the basis that the notice of appeal was untimely.

On October 7, 1964, motion to vacate the order of September 16, 1964, was filed. Attached thereto but bearing no file mark is a request of Williams for leave to appeal from his conviction which bears date July 13, 1964. This motion was overruled on November 24, 1964. Except for the letter Williams claimed to have written the trial judge, which is hereinafter discussed, no contention is made that any notice of appeal from the conviction was filed within the time required by Rule 37(a), Fed.R. Crim.P.

Upon the record before us as above outlined, this court by order filed April 1, 1965, denied Williams' application for leave to prosecute an out-of-time appeal for want of jurisdiction. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259, and Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012, were cited in support of the order.

Williams' § 2255 motion before the court in this proceeding was filed in the trial court on August 14, 1967. Attached to it is a memorandum asserting the contention that Williams was denied his constitutional right to effective assistance of counsel during the critical stage following sentencing during which his right to appeal was open. The trial court by order filed October 20, 1967, found the basis asserted for relief was substantially the same as had been previously urged and rejected. The motion was denied without a hearing, the ruling being based largely upon this court's previous determination that no jurisdiction existed to consider the appeal.

As a basis for a reversal Williams, represented here by court-appointed counsel, urges:

1. Williams' letter to the presiding judge purportedly written and mailed on May 7, 1964, is sufficient to constitute a notice of appeal from his conviction.

2. If no timely appeal was filed, Williams' deprivation of effective assistance of counsel resulting in the failure to preserve his right to a direct appeal should be remedied under the provisions of § 2255.

3. Williams did not knowingly and willingly waive his right to appeal or to the effective assistance of counsel following his sentence.

Williams at the plenary hearing held by the trial court at the direction of this court on April 19, 1968, for the first time presented what he asserted to be a copy of a letter written by him from the jail to the presiding judge, which he testified he had delivered to an attendant at the city jail for mailing on May 7, 1964, the date the copy of the letter bears.

The Government concedes that a timely letter to the judge or clerk stating defendant's desire to appeal may serve as a notice of appeal. See Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760; Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21; Howard v. United States, 8 Cir., 396 F.2d 867; United States v. Duncan, 7 Cir., 310 F.2d 367. It is also conceded that the purported letter is sufficient in form to constitute a notice of appeal.

The Government takes the position that the original of the letter, of which a copy was produced, was not in fact either written or mailed at any time prior to the expiration of the time for appeal from the conviction. In support thereof, it is urged that if such a letter had been written Williams would have produced it at one of the numerous earlier hearings. The Government further urges that the purported letter is too well written and reflects knowledge of matters Williams did not possess at the time of the claimed mailing. Moreover, the contention that an appeal was perfected by means of the letter is not urged in the present motion and consequently such issue was not before the court when it denied the motion.

The trial court construed our order for remand for a plenary hearing on the issue of waiver of right of appeal as requiring it to receive and certify evidence produced and not as directing it to make findings of fact. The issue of whether the purported letter was in fact written and mailed as testified by Williams presents a fact issue, the resolution of which turns upon Williams' credibility. In the transcript of the plenary hearing appears a statement by the trial judge that he had no recollection of receiving the purported letter and that it was his usual practice to reply to such letters and place the letter and a copy of his reply in the court file and that no such letter was found in the court file. Credibility determinations should be made by the fact finder, here the trial court. The letter notice issue was not properly raised in the trial court and the fact issue was not resolved by the trial court, and such issue cannot be raised for the first time upon appeal.

The second and third issues raised by Williams are closely related and will be considered together. It is established that Williams did not have funds to employ counsel to represent him in his trial leading to his conviction. It is not disputed that Williams was entitled to proceed in forma pauperis in all proceedings here pertinent. The trial court appointed attorney Raymond Howard to represent Williams at his trial.

On the waiver of notice to appeal issue, at the plenary hearing directed by this court Williams testified that he last saw his court-appointed counsel Howard on May 2, 1964. Included in Williams' testimony is the following:

"Q That is the day after the sentencing. Did you have any conversation with him at that time in connection with appealing this conviction?

A Yes, I brought it to his attention about the appeal. He said that he couldn\'t do anything until after Judge Harper had ruled on the trial court motion.

Q I understand. Did you at that time specifically ask him to take an appeal?

A Yes, I asked him.

Q When did you next see Mr. Howard after the May 2nd meeting?

A I didn\'t see him any more."

Howard's testimony on this subject matter includes:

"Q Thank you. It is clear, is it not, Mr. Howard, that Mr. Williams did wish an appeal to be taken in this matter? That is, that was clear to you, was it not?

A That was clear to me and it was also my advice to him that he should appeal the case because I felt that he had meritorious grounds for appeal."

Upon the foregoing and the record as a whole, it...