United States v. Herbert David Neff

525 F.2d 361, 1975 U.S. App. LEXIS 12007
CourtCourt of Appeals for the Eighth Circuit
DecidedNovember 10, 1975
Docket75--1451
StatusPublished
Cited by43 cases

This text of 525 F.2d 361 (United States v. Herbert David Neff) 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.

Bluebook
United States v. Herbert David Neff, 525 F.2d 361, 1975 U.S. App. LEXIS 12007 (8th Cir. 1975).

Opinions

STEPHENSON, Circuit Judge.

Appellant Herbert Neff’s “§ 2241 habeas corpus petition” 1 was denied by the district court2 without a hearing. The primary issue on appeal is whether he was denied effective assistance of counsel by virtue of the fact that his attorney did not pursue a direct appeal of Neff’s conviction to this court. We affirm.

Neff was convicted, after a jury trial, on a five-count indictment for firearms violation. Count I alleged that Neff and one Daniel Murphy engaged in the business of dealing in firearms and ammunition without a license, in violation of 18 U.S.C. §§ 922(a)(1) and 924(a). Counts II and IV charged Neff with possession of two unregistered weapons, in violation of 26 U.S.C. §§ 5861(d) and 5871. Counts III and V charged him with transferring these weapons, in violation of §§ 5861(e) and 5871. Neff was convicted on all five counts and sentenced to five concurrent five-year sentences.

Neff’s counsel advised him that he had no grounds for appeal, and he took none. Neff later filed this habeas corpus petition. He argues in effect that his attorney’s advice that he not appeal denied him the effective assistance of counsel. He argues also that the trial court erred: in permitting the indictment to stand although it was based on hearsay; in improperly amending the indictment; in allowing the jury to see evidence not specified in the indictment; in denying him a preliminary hearing; in denying pretrial discovery; and in trying him on a forged indictment.

We initially consider appellant’s contention that his counsel erred in advising him that he had no grounds for appeal and that he relied on this advice to his detriment by failing to appeal.3

[363]*363If an attorney does not carry out his client’s express instructions to appeal or fails to see that his client is informed of his right to appeal, the client is denied the effective assistance of counsel. Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 1970); Williams v. United States, 402 F.2d 548 (8th Cir. 1968); see also Powers v. United States, 446 F.2d 22 (5th Cir. 1971). Counsel should also “ * * * give the defendant his professional judgment as to whether there are meritorious grounds for an appeal and as to the probable results of an appeal. * * * The decision whether to appeal must be the defendant’s own choice.” See American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Prosecution Function and The Defense Function, § 8.2 (Tentative Draft 1970).

Appellant does not state what grounds were available for an appeal.4 Presumably, the other grounds raised in this action are those which appellant maintains would have been presented on appeal had he been properly advised. In discussing those grounds then, we will consider not only whether they are cognizable and valid in a habeas corpus proceeding but also whether they might have succeeded on direct appeal.

Appellant first maintains that hearsay testimony was presented to the grand jury which indicted him. This charge of irregularity in grand jury proceedings is not cognizable in a habeas corpus proceeding. Sunal v. Large, 332 U.S. 174, 179, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Houser v. United States, 508 F.2d 509, 514 (8th Cir. 1974).

Even if this claim had been raised on direct appeal, it would have failed. An indictment based entirely on hearsay is valid, absent factors not shown here. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Appellant next contends that the trial court erred in amending the indictment by changing the serial number of one weapon and adding another weapon. Apparently, these amendments were made to Count I of the indictment.5

Any amendment of the substance of an indictment without resubmission to the grand jury denies a defendant his right to indictment by grand jury for infamous crimes. Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); Stirone v. United States, 361 U.S. 212, 215-16, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887).

However, the change of a weapon’s serial number in this indictment does not require dismissal. Correction of a typographical error which goes to the form rather than the substance of the indictment is permissible. Stewart v. United States, 395 F.2d 484 (8th Cir. 1968) (change‘in date of offense). See United States v. Fruchtman, 421 F.2d 1019 (6th Cir. 1970) (change in citation of statute); United States v. Denny, 165 F.2d 668 (7th Cir. 1947) (change in spelling of defendant's name); but see Carney v. United States, 163 F.2d 784, 788-90 (9th Cir. 1947).

In addition, the amendment to the indictment could affect only the count amended; the other counts will remain valid regardless of whether the first is dismissed. Carney v. United States, 163 F.2d 784, 789 (9th Cir. 1947); Dodge v. United States, 258 F. 300 (2d Cir. 1919). Concurrent sentences were imposed . on all five counts. It is the policy of this court that when a habeas petitioner serving concurrent sentences on multiple counts can challenge only one count, the challenge will not be considered absent a showing of prejudice. Entrekin v. United States, 508 F.2d 1328 (8th Cir. 1974). See Benton v. Maryland, [364]*364395 U.S. 784, 793 n. 11, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Thus, appellant is not entitled to habeas relief on this basis.

By virtue of similar reasoning, ineffective assistance of counsel cannot be presumed from the failure to advise that an appeal be taken on this issue. This court might well have chosen to apply the concurrent sentence doctrine and not consider the argument. See United States v. Morton, 483 F.2d 573, 576 (8th Cir. 1973); Tarvestad v. United States, 418 F.2d 1043, 1046 (8th Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 944, 25 L.Ed.2d 116 (1970); Kauffman v. United States,

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Bluebook (online)
525 F.2d 361, 1975 U.S. App. LEXIS 12007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-herbert-david-neff-ca8-1975.