Schnackenberg, Knoch and Kiley, Circuit Judges.
On October 30, 1962, petitioner, Joshua Lee Calland, filed his petition asserting a right to appeal his conviction and sentence of April 10, 1962, on a charge of violation of Title 18 U.S.C. § 1708 and § 495, on the ground that delay in appeal was caused, not by excusable neglect, but by fraud of counsel. On appeal from denial of his petition, this Court remanded the cause for hearing and determination of the issues. Calland v. U.S., 7 Cir., 1963, 323 F.2d 405.
Pursuant to our Mandate, the U.S. District Court in Fort Wayne, Indiana, held a hearing, at which petitioner was represented by able Court-appointed counsel, and after consideration of the evidence which presented several conflicts in testimony and which required choice among several possible inferences from the facts found, the District Judge concluded that petitioner was aware of the 10-day limit for filing notice of appeal. Nevertheless, the District Court found petitioner's wife had advised petitioner's trial counsel that the latter's services were no longer desired and that new counsel would be procured for petitioner. An issue of credibility was presented in this connection. The testimony of the attorney, and of his wife who was present when petitioner's wife visited the office, was evidently accepted by the District Judge in preference to the conflicting statement of petitioner that he did not know that his trial attorney's employment had been terminated. Petitioner did not elect to call his own wife, who was present in the courtroom, to testify at this hearing.
There were similar conflicts in testimony as to the understanding between petitioner and his second attorney as to whether a direct appeal of the conviction was to be sought or whether the attorney would, on receipt of retainer, accept employment as petitioner's counsel to seek a new trial on the basis of alleged perjured testimony at petitioner's trial. Petitioner was supposed to supply affidavits and procure information for this purpose.
On April 23, 1962, after the expiration of the 10-day period for filing notice of appeal, Mrs. Calland had paid $200 to this second attorney. Two days later, petitioner wrote the attorney setting out names and addresses of certain witnesses and adding that petitioner's brother would assist in locating them to obtain affidavits of perjury at the trial, saying "call my brother" to bring in certain witnesses "so you can get started" and "give you enough to get a new trial." He spoke of telling his brother to "get things going that you are waiting for him."
On May 28, 1962, the attorney wrote petitioner that his brother had not yet produced the witnesses but that they were supposed to report in a few days "so that I may begin my motion * * *."
By October 24, 1962, the attorney was writing petitioner that he had waited in vain for these witnesses and that despite his own investigations he had "received no substantiation whatever to the allegations you set out."
The District Court in his Conclusions of Law referred to the conflict in testimony, noting that:
"If witnesses had lied during the trial this would be newly-discovered evidence and could be rectified under Rule 33 of the Federal Rules of Criminal Procedure; however, the filing of a notice of appeal would not remedy this charge as the appeal would relate to errors, if any, made in the record."
Under these circumstances, we cannot hold that it was error for the District Judge to find no fraud on the part of either of petitioner's two attorneys.
We cannot agree with petitioner that this case falls within the teaching of Dodd v. U.S., 9 Cir., 1963, 321 F.2d 240, where the Court distinguished between incompetence and fraud of counsel; nor do we see this as similar to the facts in Boruff v. U.S., 5 Cir., 1962, 310 F.2d 918. There the cause was remanded to determine whether there was an intentional relinquishment of a known right to appeal. On the facts as found by the District Judge, which are supported by the evidence heard on remand, petitioner knew of the 10-day limit and was aware of and approved what his counsel was trying to do for him.
Petitioner was represented by counsel of his choice. The attorney-client relationship was not vitiated by fraud. Kennedy v. U.S., 5 Cir., 1958, 259 F.2d 883, 886. There is no basis for allowing petitioner to assert a right to appeal at ...