390 F2d 875 Lofland v. United States

390 F.2d 875

James E. LOFLAND, Appellant,
UNITED STATES of America, Appellee.

No. 21474.

United States Court of Appeals Ninth Circuit.

Feb. 20, 1968, Rehearing Denied March 29, 1968.

James E. Lofland, in pro. per.

John K. Van de Kamp, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Div., Robert M. Talcott, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, HAMLEY and JERTBERG, Circuit Judges.


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Appellant, presently confined in federal custody after conviction of a federal crime (during trial for which he was represented by retained counsel), appeals the order of the district court, made on his 2255 petition, denying his motion for vacation of sentence.


The basis of appellant's motion was his alleged lack of counsel on appeal, although he had allegedly requested such representation. The court below denied relief, upon the theory there was no proof of such request, and that appellant had waived any right to such representation (C.T. 13, 18-19).


The real issue on this appeal is whether appellant did have assistance of counsel on his appeal. The record discloses that Thomas Lefner, his retained counsel below, reviewed the trial transcript and prepared the Opening Brief, after consulting with Lofland. Lefner's oral argument attempted to rebut the contentions put forth in the Appellee's Brief. These proved facts overcome Lofland's vague allegations that Lefner was an 'amicus curiae' only, and was not formally appointed 'immediately.' Appellant has failed to allege specific facts showing that he was actually deprived of the assistance of counsel on appeal.


The denial of appellant's motion to vacate is affirmed.