Marco Antonio Rivera v. United States

Third Circuit

Marco Antonio Rivera v. United States

477 F.2d 927, 10 V.I. 596, 1973 U.S. App. LEXIS 10236

CourtCourt of Appeals for the Third Circuit

DecidedApril 27, 1973

Docket72-1669

StatusPublished

Cited by11 cases

This text of 477 F.2d 927 (Marco Antonio Rivera v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marco Antonio Rivera v. United States, 477 F.2d 927, 10 V.I. 596, 1973 U.S. App. LEXIS 10236 (3d Cir. 1973).

Pincite

Opinion

OPINION OF THE COURT

SEITZ, Chief Judge

This is an appeal from a denial by the district court of a motion under 28 U.S.C.A. § 2255 to vacate sentence and set aside a judgment.

*597 In 1968, appellant’s retained counsel filed a notice of appeal from his conviction and life sentence. Subsequently his trial counsel was superseded on appeal by counsel appointed by this court. Appointed counsel did not file a brief and appendix as required by the rules of this court. Instead, he notified the court that he had been unable to find any basis for appeal. However, he took no other action. Many months later, after notice to counsel, the appeal was dismissed for want of timely prosecution.

Thereafter, appellant himself filed the § 2255 motion with the district court claiming, inter alia, that he had been denied his right of direct appeal because of ineffective assistance of counsel. The district court denied the motion essentially on the ground that a § 2255 proceeding cannot be employed as a method of reviewing the action of the Court of Appeals in dismissing an appeal. We agree. The incongruity of a district court ruling and then implementing its ruling that the Court of Appeals erred in dismissing an appeal is self-evident.

As the district court noted, appellant’s remedy is by way of a motion directed to the Court of Appeals requesting a recall of the mandate so that it could determine whether the appeal should be reinstated. See Williams v. United States, 307 F.2d 366 (9th Cir. 1962). 1 Since a panel of this court has previously denied reconsideration, it is evident that if a motion to recall the mandate is filed, 2 it should be considered by the court en banc. We say this because of the court policy that a panel decision is not overturned except by en banc action.

The judgment of the district court will be affirmed.

1

Overruled on another issue. Kaufman v. United States, 394 U.S. 217 (1969).

2

Appellant’s present counsel was appointed by this court under the Criminal Justice Act. If appellant desires to file a motion to recall the mandate he may wish to apply to this court for the appointment of his present counsel for that purpose.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

SEITZ, Chief Judge

This is an appeal from a denial by the district court of a motion under 28 U.S.C.A. § 2255 to vacate sentence and set aside a judgment.

*597 In 1968, appellant’s retained counsel filed a notice of appeal from his conviction and life sentence. Subsequently his trial counsel was superseded on appeal by counsel appointed by this court. Appointed counsel did not file a brief and appendix as required by the rules of this court. Instead, he notified the court that he had been unable to find any basis for appeal. However, he took no other action. Many months later, after notice to counsel, the appeal was dismissed for want of timely prosecution.

Thereafter, appellant himself filed the § 2255 motion with the district court claiming, inter alia, that he had been denied his right of direct appeal because of ineffective assistance of counsel. The district court denied the motion essentially on the ground that a § 2255 proceeding cannot be employed as a method of reviewing the action of the Court of Appeals in dismissing an appeal. We agree. The incongruity of a district court ruling and then implementing its ruling that the Court of Appeals erred in dismissing an appeal is self-evident.

As the district court noted, appellant’s remedy is by way of a motion directed to the Court of Appeals requesting a recall of the mandate so that it could determine whether the appeal should be reinstated. See Williams v. United States, 307 F.2d 366 (9th Cir. 1962). 1 Since a panel of this court has previously denied reconsideration, it is evident that if a motion to recall the mandate is filed, 2 it should be considered by the court en banc. We say this because of the court policy that a panel decision is not overturned except by en banc action.

The judgment of the district court will be affirmed.

1

Overruled on another issue. Kaufman v. United States, 394 U.S. 217 (1969).

2

Appellant’s present counsel was appointed by this court under the Criminal Justice Act. If appellant desires to file a motion to recall the mandate he may wish to apply to this court for the appointment of his present counsel for that purpose.

United States v. Albert Defalco, Ronald Blackwell, Leonardo Leonard Arcieri, Ronald Chicarella, Carlos Varas, Patrice Patricio Bergoeing, Albert Defalco, No. 78-2126. United States of America v. Albert Defalco, Ronald Blackwell, Leonard Arcieri, Ronald Chicarella, Carlos Varas, Patrice Patricio Bergoeing, Albert Defalco, No. 78-2209

644 F.2d 132 (Third Circuit, 1980)

United States v. DeFalco

644 F.2d 132 (Third Circuit, 1979)

Cite This Page — Counsel Stack

Bluebook (online)

477 F.2d 927, 10 V.I. 596, 1973 U.S. App. LEXIS 10236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marco-antonio-rivera-v-united-states-ca3-1973.

Opinion

Related

Cite This Page — Counsel Stack