386 F2d 89 Morgan v. United States

386 F.2d 89

Robert E. MORGAN, Appellant,
UNITED STATES of America, Appellee.

No. 23758.

United States Court of Appeals Fifth Circuit.

December 1, 1967.

John P. Dowling, New Orleans, La., for appellant.

John C. Ciolino, Asst. U.S. Atty., New Orleans, La., for appellee.

Before RIVES, GOLDBERG and AINSWORTH, Circuit Judges.


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On June 9, 1966, a pro se notice of appeal was filed from a judgment of conviction and sentence to 30 months' imprisonment. Because of the illness of the then court reporter who has since severed her connection with the district court, the transcript of the proceedings in the trial court was filed so extremely late that this appeal was delayed in submission to this Court until October 5, 1967.


The appellant had waived counsel in the district court and was duly notified by the Clerk of this Court of his right to counsel on appeal. He expressed the hope of being released on bail and arranging for employed counsel. However, he has never been successful in being admitted to bail; several applications to this Court for reduction of bail and one for release on his own recognizance were denied. It was not until September 13, 1967 that this Court, on its own motion, appointed John P. Dowling, Esq., as counsel to represent the appellant.


Mr. Dowling has ably and diligently performed his duties in the representation of appellant, and has visited and conferred with him in person in the Federal Prison at Atlanta, Georgia. The appellant reports that Mr. Dowling advised him of his right to exhaust his appellate remedies in this cause but also pointed out to him that it was Dowling's "considered professional opinion that continuation of this Appeal was ill advised, not likely to achieve a successful result and could, on the contrary, conceivably have a detrimental effect in his procurement of the earliest possible relief that might be available to him under Rule 35 of the Federal Rules of Criminal Procedure."


Upon the advice of his court-appointed counsel and on condition that his action waives no rights concerning appellant's complaint as to excessive bail in this case, or in certain other cases which appellant describes as Cases No. 17245-19293 of the Ninth Circuit, the appellant moves this Court to dismiss his appeal and affirm the conviction and sentence of the lower court. Upon consideration, and pursuant to Rule 39(a) of the Federal Rules of Criminal Procedure, it is


Ordered and adjudged that the motion of appellant be granted, and that the judgment of conviction be affirmed and the appeal dismissed, all without prejudice to any rights of the appellant concerning excessive bail in this case, in any of the Ninth Circuit cases, or in any other case.


Affirmed and dismissed.