254 F2d 954 Mitchell v. United States
254 F.2d 954
John S. MITCHELL, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals District of Columbia Circuit.
Argued March 11, 1958.
Decided April 10, 1958.
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.
Before REED, Associate Justice of the Supreme Court, retired,* EDGERTON, Chief Judge, and FAHY, Circuit Judge.
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. 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.
Sitting by designation, pursuant to Title 28 U.S.C. Section 294(a)