338 F2d 54 Wilson v. United States
338 F.2d 54
Ivory WILSON, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
October 23, 1964.
Edward Michael Riordan, San Francisco, Cal., for appellant.
William N. Goodwin, U. S. Atty., Gerald W. Hess, Asst. U. S. Atty., Seattle, Wash., for appellee.
Before ORR, JERTBERG and MERRILL, Circuit Judges.
MERRILL, Circuit Judge.
Under 28 U.S.C. § 2255 (1958) appellant moved to vacate and set aside judgment of conviction on three counts of violation of the narcotics laws. His motion was denied without hearing by the District Court for the Western District of Washington and he has taken this appeal.
Sole ground for relief is that contrary to his instructions his trial counsel failed to take an appeal from judgment. Accordingly under Rules 37(a) (2) and 45 (b) F.R.Cr.P., his right to appeal was lost. United States v. Robinson (1960) 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. He asserts that this has resulted in a loss of a basic constitutional right for which loss he is entitled to a remedy under § 2255. As support for his contention he relies upon Dodd v. United States, (9 Cir. 1963) 321 F.2d 240.
That case is distinguishable. There the petition set forth numerous allegations of error and of matters occurring on trial which, if proved, might be deemed a denial of basic rights. There are no allegations of such prejudice here. Indeed, the petition alleges no error whatsoever.