OpenJurist

36 F3d 127 United States v. E Holmes

36 F.3d 127

308 U.S.App.D.C. 313

UNITED STATES of America
v.
Nathaniel E. HOLMES, Appellant.

No. 93-3091.

United States Court of Appeals, District of Columbia Circuit.

Sept. 20, 1994.

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant.

Before: BUCKLEY, GINSBURG, and RANDOLPH, Circuit Judges.

JUDGMENT

PER CURIAM.

1

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and argument of counsel. The court is satisfied, after reviewing the parties briefs and hearing argument, that appropriate disposition of the case does not call for further opinion. See D.C.Cir.Rule 36(b).

2

This case is presently before this court on appeal of the district court's denial of appellant's motion to vacate, set aside, or correct sentence pursuant to Title 28 U.S.C. Sec. 2255. Appellant sought to withdraw his guilty plea prior to sentencing, and the district court denied this request. At his sentencing hearing, appellant's counsel promised the court that he would file an appeal on appellant's behalf, but failed to do so within the statutory time period. As a result, appellant was denied the opportunity to take a direct appeal of the district court's decision. Counsel's failure to file a timely appeal deprived appellant of his 6th Amendment right to assistance of counsel. See Rodriguez v. United States, 395 U.S. 327, 329-30 (1969); United States v. Peak, 992 F.2d 39, 42 (4th Cir.1993); Bonneau v. United States, 961 F.2d 17, 23 (1st Cir.1992); Abels v. Kaiser, 913 F.2d 821, 823 (10th Cir.1990). Therefore, it is

3

ORDERED and ADJUDGED that the dismissal of appellant's Sec. 2255 petition is vacated and the matter is remanded to the district court for resentencing within 30 days. Upon resentencing, appellant will have the right to appeal his sentence to this court within the statutory deadline.