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Kirk v. United States

June 23, 1971

JOHN KIRK, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Major, Senior Circuit Judge, and Fairchild and Pell, Circuit Judges. Pell, Circuit Judge (dissenting).

Author: Fairchild

FAIRCHILD, Circuit Judge.

This is an appeal from a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.

On November 14, 1966, John Kirk was convicted by a jury of selling heroin in violation of 26 U.S.C. § 4705(a) and 21 U.S.C. § 174. The district court imposed sentence, but did not advise Kirk "of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis." Such advice was required by Rule 32(a) (2), F.R.Cr.P., as amended, effective July 1, 1966.

Kirk was represented at trial by retained counsel. Counsel filed a notice of appeal November 23 and on January 3, 1967, obtained a 20 day extension for filing the record, but took no further steps. On April 5, 1967, on motion of the government, copies of the motion having been mailed to Kirk and counsel, this court ordered the appeal docketed and dismissed.

Kirk prepared and presented his § 2255 motion without counsel. We appointed counsel for him on appeal. Appointed counsel has brought to our attention the record which shows the failure of the district court to fufill Rule 32(a) (2), and argues that the denial of the motion must be reversed on that ground, if no other.

Rodriquez v. United States*fn1 dealt with a similar failure to advise a convicted defendant of his right to appeal, although the rule then in force was Rule 37(a) (2), applying to a defendant not represented by counsel, and since replaced by present Rule 32(a) (2) applying whether or not the defendant is represented. The Supreme Court decided that it was unnecessary to determine whether the omission of the advice was in fact the cause of Rodriquez' failure to take an appeal, reversed the denial of the § 2255 motion, and remanded the case to the district court for resentencing, so that an appeal might be taken. We think it must clearly follow from Rodriquez that if Kirk had not filed a notice of appeal, the failure of the district court to give the advice called for by Rule 32(a) (2) would have required relief on a § 2255 motion.

We must consider, then, whether the fact that he took an appeal and later abandoned it, warrants a different result.

It is conceivable, of course, that Kirk, with advice of counsel, intelligently and voluntarily elected not to pursue his appeal. It is not improbable, however, that retained counsel felt he had fulfilled all the obligations he had undertaken and was unwilling to proceed, that Kirk, in prison and unable to pay for an appeal, was ignorant of the opportunity to perfect the appeal and obtain counsel without expense, and that he did not intelligently and voluntarily abandon the appeal. We cannot infer or presume, under the circumstances, that the abandonment was intelligent and voluntary. We could, if unwilling to infer or presume the contrary, remand for a factual inquiry to determine whether the omission of the advice required by the rule was a cause of the abandonment.

The Supreme Court in Rodriquez declined to order a factual inquiry and, in effect, presumed that the district court's failure to advise the defendant was a cause of defendant's failure to appeal. We consider a similar presumption appropriate in this case. In both instances the presumption advances a policy of protecting a convicted person's appeal, which, as noted in Rodriquez,*fn2 is a matter of right, and which Rule 32(a) (2) is designed to protect.

The result reached is consistent with policy considerations which led this court to adopt, as of September 22, 1969, its own Rule 17, regulating dismissal of criminal appeals and requiring the mailing of notice of proposed dismissal to the defendant personally. Paragraph (b) requires that "The notice shall inform such person that he may file objections or otherwise respond to the motion within thirty days after the date on which it was filed. * * * It shall also inform such person of his right to retain other counsel or, if appropriate, to have new counsel appointed." The events in this case took place before adoption of our rule, and the copy of the motion to dismiss mailed to Kirk did not contain such information.

The judgment appealed from is reversed and the cause remanded with directions to set aside the sentences and to impose new sentences, with appropriate advice, so that there will be an opportunity for a new appeal.

PELL, Circuit Judge (dissenting).

John Kirk, who was convicted by a jury in November of 1966 of selling heroin, is now to be brought before the district court again for resentencing because of non-compliance by the district judge with the newly adopted Rule 32 (a) (2), Fed.R.Crim.P., requiring that the convicted defendant be advised of his right to appeal and of his further right, if he is unable to pay the cost of appeal, to seek leave to appeal in forma pauperis. I must ...


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