254 F.2d 954 - Mitchell v. United States — 254 F.2d 954

How this case has been cited

Cited by 35 later decisions — most recently April 1970 · most notably Rivera v. United States (1963), Dodd v. United States (1963)

20 federal appellate · 1 district · 10 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1Mr. Martin J. McNamara, Jr., Washington, D. C. (appointed by the District Court) for appellant.

¶2Mr. Walter J. Bonner, Asst. U. S. Atty., with whom Messrs. Oliver Gasch, U. S. Atty., and Lewis Carroll and Alexander L. Stevas, Asst. U. S. Attys., were on the brief, for appellee.

¶3Before Reed, Associate Justice of the Supreme Court, retired,* Edgerton, Chief Judge, and Fahy, Circuit Judge.

¶5PER CURIAM.

¶6The defendant did not appeal from a conviction and sentence under the narcotics laws. It is now too late to do so. He now appeals from denial of a motion under 28 U.S.C. § 2255 to vacate his sentence.

¶7His present counsel, appointed by the District Court, contends that because trial counsel did not appeal, trial counsel did not give the defendant the “effective assistance” to which he was entitled. The defendant says his trial counsel refused to appeal because the defendant could not pay him a fee. But such a refusal, in the circumstances of this case, is not a ground for vacating the sentence.

¶8It has been said that “failure to appeal may not be excused upon a mere showing of neglect of counsel.” Dennis v *955United States, 4 Cir., 177 F.2d 195. Perhaps that statement is too broad. We need not now decide whether failure to appeal would be a denial of effective assistance, and would open a conviction to “collateral attack” under § 2255, if there were plain reversible error in the trial. There was no such plain error in this trial.

¶9Affirmed.