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Calland v. United States

October 10, 1963


Author: Schnackenberg

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.


Joshua Lee Calland, petitioner, has appealed from an order of the district court entered January 17, 1963, which denied his motion of October 30, 1962 requesting that the court grant him the right to appeal his conviction and sentence by the district court on April 10, 1962, despite petitioner's explanation that, although the time for filing a notice of appeal had long since expired when his motion was filed, the delay was occasioned by the fraud and ineffective assistance of counsel.

The motion upon which the district court ruled was subscribed and sworn to by petitioner before a parole officer in the United States penitentiary, where undoubtedly petitioner is serving said sentence, the total effect of which was to impose a term of imprisonment of 10 years.

According to the verified motion, Wayne Miller, counsel for petitioner at his trial, failed to provide effective assistance to defendant.

The district court also had before it, when it made its ruling of January 17, 1963, petitioner's so-called motion to show cause in which it is alleged that petitioner was tried on April 10, 1962 for a violation of 18 U.S.C. ยงยง 1708 and 495, and that immediately after sentence was imposed petitioner instructed his attorney to give notice of appeal, which counsel agreed to do; that on April 11, 1962, in the Allen County jail, he again instructed his counsel to give notice of appeal and obtain transcript of the proceedings, which counsel agreed to do, but that he "has never heard from or seen defense counsel since the conference of April 11, 1962."

Said motion also alleges that on April 19, 1962, he conferred at the county jail with attorney Norbert L. Wyss and retained him to file the notice of appeal and pay the filing fee of $5; and on April 23, 1962 he paid attorney Wyss $200 for his services in filing the notice of appeal and starting the appeal, pursuant to 18 U.S.C.A. rule 37(a) (2), Federal Rules of Criminal Procedure. The next day, according to petitioner's motion, he was removed to the United States penitentiary and later transferred to the penitentiary where he is now confined. According to the motion, petitioner on May 28, 1962 received a letter from attorney Wyss stating that he was working in all haste on the motion, but, on or about August 24, 1962, petitioner received a copy of the docket sheet from the district court which revealed that no notice of appeal was filed in the district court, no motion was there made to support an appellate review and Wyss' name did not appear on said docket sheet.

On October 24, 1962, according to the motion, petitioner received from attorney Wyss a letter stating that he had held conferences with one Carol Honess, an investigating agent, the district attorney and various policemen and that "He feels the success of an appeal is nil."

On the basis of the charges of petitioner that there was ineffective assistance of counsel and that counsel had perpetrated fraud and misrepresentation upon him, we granted leave to petitioner to proceed in forma pauperis in this court, and appointed attorney Edwin A. Rothschild of the Illinois bar to represent him.

Said rule 37(a) (2) provides, in part: "* * * An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, * * *. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. * * *"

Assuming, only for the purposes of this opinion, the truth of the allegations of facts by petitioner, it is evident that he was desirous of having a review by this court of his conviction and that he in effect so instructed attorney Miller, who represented him at the trial. He gave this instruction twice, once immediately after sentencing and again on the following day, and his lawyer agreed to act accordingly. After the expiration of nine days, not hearing from his attorney, he retained attorney Wyss for the same purpose and thereafter paid him a substantial fee as a retainer, only to learn several months later that the docket of the district court did not show that a notice of appeal had been filed. Not until October did he learn that attorney Wyss considered his appeal would be fruitless.

The United States Supreme Court said in Coppedge v. United States, 369 U.S. 438, 441, 82 S. Ct. 917, 919, 8 L. Ed. 2d 21:

"Present federal law has made an appeal from a District Court's judgment of conviction in a criminal case what is, in effect, a matter of right. That is, a defendant has a right to have his conviction reviewed by a Court of Appeals, and need not petition that court for an exercise of its discretion to allow him to bring the case before the court. The only requirements a defendant must meet for perfecting his appeal are those expressed as time limitations within which various procedural steps must be completed. First, ...

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