Gregory Rothwell Self v. United States

574 F.2d 363, 1978 U.S. App. LEXIS 11641
CourtCourt of Appeals for the Sixth Circuit
DecidedApril 17, 1978
Docket77-1524
StatusPublished
Cited by4 cases

This text of 574 F.2d 363 (Gregory Rothwell Self v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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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Gregory Rothwell Self v. United States, 574 F.2d 363, 1978 U.S. App. LEXIS 11641 (6th Cir. 1978).

Opinion

PHILLIPS, Chief Judge.

Gregory Rothwell Self appeals from the decision of the district court denying his motion to vacate sentence pursuant to 28 U.S.C. § 2255. Reference is made to the comprehensive opinion of the district judge for a recitation of pertinent facts. Self v. United States, 434 F.Supp. 548 (E.D.Tenn. 1977).

Self and a co-defendant were convicted by a jury of conspiring to commit bank robbery and of committing bank robbery by use of dangerous weapons. On May 16, 1975, this court affirmed the conviction in an unpublished order in Nos. 74-2310-11. From our examination of the record we found “overwhelming evidence of guilt of both appellants and no error in the proceedings in the district court which prejudiced their rights.”

Thereafter, Self filed a motion to vacate sentence, contending that his court-appointed counsel, after demand, “failed to appeal . to the Supreme Court.” The district court dismissed the petition on the ground that no constitutional or other error was asserted that would entitle petitioner to relief pursuant to 28 U.S.C. § 2255.

On November 22, 1976, this court remanded the case to the district court with directions to conduct an evidentiary hearing to determine whether appointed counsel had been requested to file a petition for certiorari. We said:

“In his § 2255 motion, appellant contended that he requested appointed counsel to ‘appeal’ his conviction to the Supreme Court and he argues that counsel’s failure to do so constituted denial of equal protection as guaranteed by the Constitution. The District Court in granting appellee’s motion to dismiss determined that there was no constitutional right to counsel in a discretionary appeal relying upon Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).
“Although we agree with the District Court that there is no constitutional right to counsel to assist in the preparation of an application for discretionary appeal, we observe that counsel in this case was appointed under the Criminal Justice Act and that the Plan of this Court required by 18 U.S.C. § 3006A requires appointed counsel, if requested, to prepare and file a petition for certiorari. If counsel had been so requested and did not do so, petitioner has been deprived of a right accorded to him by the statute and rule of this Court.”

Upon remand, the district court concluded:

[T]he evidence clearly shows that the petitioner did not request his appointed counsel to file a petition for certiorari. In fact, the evidence is undisputed that following the affirmance of the petitioner’s conviction upon appeal the petitioner’s counsel promptly wrote to the petitioner advising him that his conviction had been affirmed, enclosing a copy of the Court of Appeals opinion and asking for instructions regarding the filing of a petition for certiorari (Ex. # 1). The evidence is likewise undisputed that the petitioner received this letter but never responded to it. It is now clear from the *365 evidence that the present motion was at the best frivolous at the time of its initial pro se filing by the petitioner. 434 F.Supp. at 550-51.

On his present appeal Self was represented by a court-appointed attorney, who filed a brief and presented an oral argument. It is asserted that reversible error was made in proceedings in connection with the § 2255 evidentiary hearing, and that the findings of the district court are clearly erroneous. Upon examination of the record we conclude that these contentions are without merit.

Accordingly, the judgment of the district court denying the motion to vacate sentence must be affirmed.

In his persuasive opinion, the district judge suggests that the rule requiring court-appointed counsel to file a petition for certiorari upon the request of his client be modified or repealed. After careful consideration of all aspects of the issue, we conclude that no change should be made in this requirement.

The Criminal Justice Act, 18 U.S.C. § 3006A, provides that each United States district court, with the approval of the Judicial Council of the Circuit, shall place in operation a plan for furnishing legal representation to defendants who are financially unable to obtain adequate representation. The Judicial Council is required to supplement the district court plans “with provisions for representation on appeal.” 18 U.S.C. § 3006A(a).

On February 10, 1971, the Judicial Council for the Sixth Circuit adopted a plan for representation in the Court of Appeals. Paragraph III, subparagraph 5, provides as follows:

5. If, after an adverse decision by the Court of Appeals, a review by the Supreme Court of the United States is to be sought, the appointed attorney shall, if requested to do so after discussion with the person for whom the attorney is appointed, prepare and file a petition for certiorari and other necessary and appropriate documents in connection therewith.

Sixth Circuit Rule 12(f)(5) provides as follows:

(5) Court appointed counsel is obligated to file a petition for a writ of certiora-ri in the Supreme Court of the United States if his client requests that such a review be sought.

If court-appointed counsel files a petition for certiorari, it is the practice of this court to include compensation for these services in the amount to be paid to him as counsel for his client in the Court of Appeals. 1

As stated in our order of remand, dated November 22,1976, quoted above, we agree with the conclusion of the district court that there is no constitutional right to counsel to assist in the preparation of an application for a discretionary appeal. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974). We are convinced, however, that the above-quoted subparagraph of the Sixth Circuit Criminal Justice Plan, as implemented by Sixth Circuit Rule 12(f)(5), is in accord with the purpose of the Criminal Justice Act, as demonstrated by its legislative history. See [1964] U.S.Code Cong. & Admin.News 2990.

In his State of the Union address on January 14, 1963, President John F. Kennedy said: “The right to competent counsel must be assured every man accused of crime in a Federal court regardless of his means.” See H.R.Rep.No.864, 88th Cong., 2d Sess. 2, reprinted in [1964] U.S.Code Cong. & Admin.News 2990, 2991.

On March 8, 1963, President Kennedy sent to the Speaker of the House of Representatives the following communication:

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574 F.2d 363, 1978 U.S. App. LEXIS 11641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-rothwell-self-v-united-states-ca6-1978.