Ernest Cobbett v. United States

Eighth Circuit

Ernest Cobbett v. United States

43 F.3d 395, 1994 U.S. App. LEXIS 36438, 1994 WL 715093

CourtCourt of Appeals for the Eighth Circuit

DecidedDecember 27, 1994

Docket94-1779

StatusPublished

Cited by3 cases

This text of 43 F.3d 395 (Ernest Cobbett v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ernest Cobbett v. United States, 43 F.3d 395, 1994 U.S. App. LEXIS 36438, 1994 WL 715093 (8th Cir. 1994).

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Opinion

WOLLMAN, Circuit Judge.

Ernest Cobbett pled guilty to a federal cocaine charge in 1989. There was no appeal. Three years later, Cobbett filed a 28 U.S.C. § 2255 motion to vacate his sentence. It is from the district court’s order 1 denying this motion that Cobbett appeals.

In general, where a criminal defendant cannot show good cause for his failure to appeal, even meritorious claims will be barred in post-conviction proceedings. Reid v. United States, 976 F.2d 446, 447-48 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993). Cobbett, attempting to establish the required excuse or cause for his failure to appeal, alleges ineffective assistance of counsel. The chief allegation is that trial counsel wrongly told Cobbett that he could not appeal the sentence because he had pled guilty.

The government produced an affidavit by trial counsel stating that Cobbett was advised of the right to appeal his sentence and that Cobbett never requested an appeal. There has been no evidentiary hearing on what trial counsel told Cobbett concerning his appeal rights. Cobbett argues that such a hearing is required because of the conflict between his recollection and trial counsel’s affidavit.

Even if trial counsel fails in the duty to inform a criminal defendant of his appeal rights, the defendant is not prejudiced if he otherwise had actual knowledge of his appeal rights. Novak v. Purkett, 4 F.3d 625, 627-28 (8th Cir.1993). In this case, after pronouncing sentence the district court carefully informed Cobbett of his right to appeal notwithstanding his guilty plea. Upon being asked by the district court whether he had any questions regarding the right to appeal that the court had just advised him of, Cob-bett replied, “No, sir.” Accordingly, even if we assume the truth of Cobbett’s allegations regarding his trial counsel’s omission, there is no need for an evidentiary hearing because the transcript of the sentencing hearing shows beyond doubt that Cobbett knew of his appeal rights.

Cobbett knew that he could appeal, but he failed to do so; he is therefore barred from seeking post-conviction relief under 28 U.S.C. § 2255. Reid, 976 F.2d at 448. Because of this procedural default or bar, we need not consider the merits of Cobbett’s claims. Id.

The district court’s order is affirmed.

1

. The Honorable Edward L. Filippine, Chief Judge, United States District Court for the East-em District of Missouri.

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WOLLMAN, Circuit Judge.

Ernest Cobbett pled guilty to a federal cocaine charge in 1989. There was no appeal. Three years later, Cobbett filed a 28 U.S.C. § 2255 motion to vacate his sentence. It is from the district court’s order 1 denying this motion that Cobbett appeals.

In general, where a criminal defendant cannot show good cause for his failure to appeal, even meritorious claims will be barred in post-conviction proceedings. Reid v. United States, 976 F.2d 446, 447-48 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1351, 122 L.Ed.2d 732 (1993). Cobbett, attempting to establish the required excuse or cause for his failure to appeal, alleges ineffective assistance of counsel. The chief allegation is that trial counsel wrongly told Cobbett that he could not appeal the sentence because he had pled guilty.

The government produced an affidavit by trial counsel stating that Cobbett was advised of the right to appeal his sentence and that Cobbett never requested an appeal. There has been no evidentiary hearing on what trial counsel told Cobbett concerning his appeal rights. Cobbett argues that such a hearing is required because of the conflict between his recollection and trial counsel’s affidavit.

Even if trial counsel fails in the duty to inform a criminal defendant of his appeal rights, the defendant is not prejudiced if he otherwise had actual knowledge of his appeal rights. Novak v. Purkett, 4 F.3d 625, 627-28 (8th Cir.1993). In this case, after pronouncing sentence the district court carefully informed Cobbett of his right to appeal notwithstanding his guilty plea. Upon being asked by the district court whether he had any questions regarding the right to appeal that the court had just advised him of, Cob-bett replied, “No, sir.” Accordingly, even if we assume the truth of Cobbett’s allegations regarding his trial counsel’s omission, there is no need for an evidentiary hearing because the transcript of the sentencing hearing shows beyond doubt that Cobbett knew of his appeal rights.

Cobbett knew that he could appeal, but he failed to do so; he is therefore barred from seeking post-conviction relief under 28 U.S.C. § 2255. Reid, 976 F.2d at 448. Because of this procedural default or bar, we need not consider the merits of Cobbett’s claims. Id.

The district court’s order is affirmed.

1

. The Honorable Edward L. Filippine, Chief Judge, United States District Court for the East-em District of Missouri.

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43 F.3d 395, 1994 U.S. App. LEXIS 36438, 1994 WL 715093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ernest-cobbett-v-united-states-ca8-1994.

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