¶1(dissenting).
¶2Being unable to agree with the reasoning in Division III of the majority opinion, and result reached, I respectfully dissent.
¶3At the outset I refer to Blanchard v. Brewer, 8 Cir., 429 F.2d 89.
¶4Blanchard had been convicted and sentenced. This court thereafter dismissed his appeal because the trial attorney failed to serve notice on opposing counsel. In upholding petitioner’s request for a habeas writ, unless he was granted an out-of-time appeal, the federal court first observed at page 90:
“Iowa contends that the court erred by holding appellee was denied effective assistance of counsel because of counsel’s failure to comply with the notice requirements of § 793.4 and that the State of Iowa in no way contributed to his denial of counsel. More specifically, Iowa maintains only gross misconduct on the part of retained counsel, such as a complete failure to commence an appeal, e. g., Atilus v. United States, 5 Cir., 1969, 406 F.2d 694, or affirmative coercion on the part of the state forcing a man to abandon his right of appeal, e. g., Ford v. State, 1965, 258 Iowa 137, 138 N.W.2d 116, constitute an effective denial of due process by requiring a criminal defendant to relinquish appellate review. It is argued that counsel’s erroneous but good-faith attempted service and Iowa’s mere acquiescence therein are not sufficient basis for violation of due process in this factual situation.”
¶5And following id.is this pertinent guiding statement:
“Under certain circumstances failure to perfect an appeal is denial of effective counsel. Leventhal v. Gavin, 1 Cir., 1968, 396 F.2d 441. See, also, Entsminger v. Iowa, 1967, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501. Indeed, failure by appointed or retained counsel to commence the simple steps for appeal is a blatant denial of due process. Atilus v. United States, supra,406 F.2d 694; Williams v. United States, 8 Cir., 1968, 402 F.2d 548; Wainwright v. Simpson, 5 Cir., 1966, 360 F.2d 307. Distinctions between gross or simple negligence on the part of counsel, or between retained or appointed counsel, or between active or passive negligence on the part of the state are immaterial. Whether counsel’s conduct is classified as gross or excusable negligence or whether the state’s activity is classified as passive or active is irrelevant, since in either case appellee has been denied effective and complete appellate review through no fault of his own. Compare, Shipman v. Gladden, Or., 1969, 453 P.2d 921 (notice of appeal served on opposing counsel but not timely filed) with Williams v. United States, supra, 402 F.2d 548 (where counsel did not even commence appellate proceedings). In Shipman, the Supreme Court of Oregon stated at page 925 of 453 P. 2d:
“ ‘The failure to perform the simple procedure of timely filing a notice of appeal is not the “effective” assistance of counsel required by Powell v. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158], nor the diligent advocacy required by Anders v. California [386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493]. The failure of counsel to timely file a notice of appeal after he has been requested or agreed to do so is incompetence as a matter of law and a denial of due process. This is equally true whether the negligent counsel has been appointed or retained. The “invidious discrimination” is not between the rich who can hire counsel and the poor for whom counsel must be appointed, but between those who are represented by competent counsel and those whose counsel prove to be grossly incompetent or culpably negligent.’ ”
¶6Also, in Atilus v. United States, 5 Cir., 406 F.2d 694, defendant, claiming his attorney erroneously failed to give notice of appeal, sought benefit of a delayed appellate *159review. Attendant hearing was held at which time these questions were asked and answers given by defendant’s trial lawyer:
“ ‘You recollect that you had any conversation with [Atilus] whatsoever about the question of appealing his case ?
“ ‘A. I think he indicated at the time after the trial that he wanted to appeal and was interested in appealing.
“ ‘Q. Is it not true that it was in court after he was sentenced that he indicated that he wanted to appeal or that he asked if he could appeal ?
“ ‘A. I believe that is true.
“ ‘Q. You never filed any appeal for him, did you ?
“ ‘A. No, but we had some extensive correspondence regarding an appeal. Do you want me to go into that ?’ ”
¶7The court then found at page 696:
“The first such correspondence was a letter dated March 26, 1964, six days after the appellant’s conviction and sentence. In this letter no word was made concerning an appeal. The lawyer stated T am sorry that I was not able to see you before you left going back to Rai-ford. I will do everything that I can to get you parole, and to do everything to take care of business while you are there.’ (emphasis added.) The letter enclosed a power of attorney which the lawyer requested Atilus to sign so that the lawyer might collect his fee. The time to appeal expired on March 30th. No response was made by Atilus to the request that he sign the broad power of attorney contained in the letter of March 26th. However, in subsequent letters of April 2nd and April 8th, the lawyer repeated the request that the power of attorney be signed. ■ Finally in the letter dated April 8th, the lawyer enclosed a second power of attorney for him to sign and said, T cannot help you until you do this.’
“Of course, by this time the time for filing notice of appeal had expired.
“Our problem here arises from the fact that the status of the relationship between Atilus and his trial counsel is difficult to determine at the time when the right of appeal expired. The lawyer had not asked the court to be relieved from any further representation of Ati-lus; he had not expressly notified his client that he was withdrawing from the case; nor had he notified him that he would not carry out appellant’s expressed wish to file a notice of appeal …
¶8Then, in granting relief requested by Atilus, the court said, in part, at pages 696-698:
“This court has dealt repeatedly with the problem presented when either court appointed counsel or privately engaged counsel is charged, following conviction and sentence, with having failed to provide the effective aid to which the Supreme Court, beginning with Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 has said every federally tried accused person is entitled.
“We begin with several basic principles. The first of these is that every convicted person has an absolute right to an appeal. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21.” “ …
“In any event, the undisputed evidence in this record indicates that counsel who owed the highest duty which one man owes to another, i. e., that of lawyer to client, failed to discharge that obligation. He failed to take the simple step of filing a notice of appeal, although requested to do so, and failed to notify his client that he was not taking this step so that the latter could protect his interests either by calling on the court for protection under the Federal Rules as an indigent, or requesting the clerk to enter the notice of appeal on his behalf while he *160sought additional counsel. Such conduct clearly violates the requirement that the accused he afforded 'effective aid’ at this vital stage of the proceedings.”
¶9Additionally, in support of this dissent, see also the cases cited in Blanchard, supra, and Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340; Byrd v. Smith, 5 Cir., 407 F.2d 363; People v. Bailey, 81 Cal.Rptr. 774, 460 P.2d 974 (Cal.); Iowa Court Rule 16 (July 10, 1967.)
¶10I would reverse, or in the alternative grant this appellant leave to take a delayed appeal.