U.S. Court of Appeals for the D.C. Circuit, 1958

John S. Mitchell v. United States

U.S. Court of Appeals for the D.C. Circuit · Decided April 10, 1958 · Reed, Edgerton, Fahy

254 F.2d 954; 103 U.S. App. D.C. 97; 1958 U.S. App. LEXIS 4139 (Federal Reporter, Second Series)

Counsel

Mr. Martin J. McNamara, Jr., Washington, D. C. (appointed by the District Court) for appellant., Mr. Walter J. Bonner, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll and Alexander L. Stevas, Asst. U. S. Attys., were on the brief, for appellee.

Cases that cite this one

23 later published cases cite this decision.

W. C. Dodd v. United States (9th Cir. 1963)
United States v. Peabody (District Court, W.D. Washington 1958)
Earl Lewis Kent v. United States (5th Cir. 1970)
Haines v. People (Colo. 1969)
Blanchard v. Bennett (Iowa 1969)
Gerard Peabody v. United States (9th Cir. 1968)
Hugh E. Maness v. Harold R. Swenson, Warden, Missouri State Penitentiary (8th Cir. 1967)
Milligan v. State (Fla. Dist. Ct. App. 1967)
Pitts v. North Carolina (District Court, M.D. North Carolina 1967)
Tipton v. Commonwealth (Court of Appeals of Kentucky (pre-1976) 1966)
Wood v. Robbins (District Court, D. Maine 1966)
Calvin Fennell v. United States (10th Cir. 1965)
Jesus Rivera v. United States (9th Cir. 1963)
Ramsey v. United States (District Court, E.D. Tennessee 1963)
People v. Coe (New York County Courts 1962)
Larry C. Glouser v. United States of America, Raymond P. Gearhart, Jr. v. United States (8th Cir. 1961)
United States v. Rader (United States District Court for the Western District of Arkansas 1961)
Nelson v. State (Fla. Dist. Ct. App. 1968)
Kelly v. State (Kan. 1966)
State v. Maness (Mo. 1966)
Wood v. State (Me. 1965)
George C. Desmond v. United States of America, (Two Cases) (1st Cir. 1964)
People v. Kling (Appellate Division of the Supreme Court of New York 1963)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM.

The defendant did not appeal from a conviction and sentence under the narcotics laws. It is now too late to do so. He now appeals from denial of a motion under 28 U.S.C. § 2255 to vacate his sentence.

His present counsel, appointed by the District Court, contends that because trial counsel did not appeal, trial counsel did not give the defendant the “effective assistance” to which he was entitled. The defendant says his trial counsel refused to appeal because the defendant could not pay him a fee. But such a refusal, in the circumstances of this case, is not a ground for vacating the sentence.

It has been said that “failure to appeal may not be excused upon a mere showing of neglect of counsel.” Dennis v *955 United States, 4 Cir., 177 F.2d 195. Perhaps that statement is too broad. We need not now decide whether failure to appeal would be a denial of effective assistance, and would open a conviction to “collateral attack” under § 2255, if there were plain reversible error in the trial. There was no such plain error in this trial.

Affirmed.

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