849 F2d 1472 Caplinger v. United States
849 F.2d 1472
Billy Ray CAPLINGER, Petitioner-Appellant,
UNITED STATES of America, Respondent-Appellee.
United States Court of Appeals, Sixth Circuit.
June 28, 1988.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before KEITH and ALAN E. MORRIS, Circuit Judges, and GEORGE E. WOODS, District Judge.*
Petitioner, a federal prisoner, appeals the district court's denial of his motion under 28 U.S.C. Sec. 2255 seeking vacation of his sentence (writ of habeas corpus). One of the grounds asserted for relief was ineffective assistance by his counsel in prosecuting his appeal from his convictions. The district court, in its order denying petitioner's motion, noted that "[a]n appeal was perfected after the movant's wife paid the attorney $275 to perfect the appeal. Subsequently the appeal was dismissed by the Court of Appeals because the movant did not arrange for providing a transcript by the court reporter."
Because abandonment of an appeal by counsel can amount to ineffective assistance of counsel, and there is inadequate information in the record from which it can be determined whether counsel was unjustifiably responsible for the dismissal of petitioner's direct appeal for want of prosecution, the district court erred in not conducting the factual inquiry necessary to develop the record.
We do not address the district court's disposition of the other issues raised by petitioner's motion, since those are issues which properly could be raised on direct appeal should the district court, upon remand, determine that petitioner was denied effective assistance of counsel in his direct appeal and, as a result, permit petitioner to file a direct appeal. Ordinarily, that would be accomplished by vacating petitioner's sentences and resentencing him, solely for the purpose of permitting him to file a new notice of appeal.
The order of the district court is vacated and this cause is remanded with instructions to conduct the factual inquiry which will enable the district court to fully consider petitioner's motion for relief under 28 U.S.C. Sec. 2255.
Hon. George E. Woods, United States District Judge for the Eastern District of Michigan, sitting by designation