Appeal from the United States District Court for the Eastern District of Wisconsin.
No. 94 C 1206 Terence T. Evans, Chief Judge.
Before CUMMINGS, COFFEY, and ROVNER, Circuit Judges.
Lou A. Griffin filed this petition under 28 U.S.C. sec. 2255 seeking to have his sentence on cocaine and gun charges vacated so that he can be re-sentenced and thereby take a new appeal. Griffin claims that his attorney's ineffective assistance on his direct appeal prevented him from prosecuting that appeal. Because Griffin's claim of ineffective assistance of counsel is potentially meritorious and there is prima facie support in the record for this claim -- and because the government now acknowledges the need for further inquiry into Griffin's claim -- we vacate the district court's dismissal of Griffin's petition and remand this case for an evidentiary hearing.
On September 1, 1990, Griffin was convicted of conspiracy to distribute cocaine, 21 U.S.C. sec. 846, distribution of cocaine, 21 U.S.C. sec. 841(a)(1), and possession of a firearm by a convicted felon, 18 U.S.C. secs. 922(g)(1), 924(a). On November 6, 1990, he was sentenced to nine years' imprisonment, to be followed by three years' supervised release. Griffin filed a timely notice of appeal on November 16, 1990.
During the pendency of his appeal, Griffin fired his retained trial attorney, Christopher Lowe, and hired Charles R. Koehn to represent him. The district court granted Griffin in forma pauperis status, and in May 1991, this court appointed Koehn, retroactive to January 1991, to represent Griffin.
Because he was appointed, Koehn was required either to prosecute Griffin's appeal or to file an Anders brief before withdrawing. See Penson v. Ohio, 488 U.S. 75, 81-83 (1988); Anders v. California, 386 U.S. 738 (1967). Koehn did neither; he never filed a jurisdictional statement or a brief in this court. *fn1 On March 6, 1991, we issued a Rule to Show Cause "why disciplinary action should not be taken . . . for failing to prosecute this appeal." Koehn's response to the Rule to Show Cause was due on March 20, but he never filed one. On April 25, this court fined Koehn $100 for failing to file the jurisdictional statement, and ordered him to pay the fine and file the statement by May 3. By May 14, Koehn still had not paid the fine or filed the jurisdictional statement. On that day, in response to Koehn's motion for an extension of time, we ordered Koehn to pay the fine immediately and to file a detailed response to the Rule to Show Cause no later than May 20.
On May 17, Koehn filed a motion to dismiss the appeal voluntarily. Fed. R. App. P. 42(b). Although Griffin apparently agreed to dismiss his appeal, *fn2 he claims that he did so only because Koehn erroneously informed him that he could file a motion for a reduction of sentence under Rule 35(b) of the Federal Rules of Criminal Procedure, and that such a motion would "do [him] more good than an appeal." This court granted Griffin's motion to dismiss his appeal. On May 23, Koehn paid the $100 fine, but he never filed a response to our Rule to Show Cause.
In January 1992, Koehn filed a Rule 35(b) motion on Griffin's behalf. Needless to say, because -- since 1987 -- only the government may file a Rule 35(b) motion (and even then, only within one year of the imposition of the sentence), the district court denied the motion.
On October 31, 1994, Griffin filed the present petition under 28 U.S.C. sec. 2255, in which he claimed that he was denied effective assistance of counsel in his direct appeal. *fn3 Griffin stated that he agreed to dismiss his direct appeal only because Koehn advised him that it would be more advantageous to him to file the Rule 35(b) motion. The government responded to Griffin's sec. 2255 petition by arguing, first, that Griffin's voluntary dismissal of his direct appeal precluded him from asserting that he had been denied effective assistance of counsel on appeal, and second, that Griffin could not ...