Opinion · Court of Appeals for the Third Circuit

Marco Antonio Rivera v. United States

Marco Antonio Rivera v. United States, 477 F.2d 927 (3d Cir. 1973)

Type: Opinion
Court: Court of Appeals for the Third Circuit
Jurisdiction: Federal
Date: 1973-04-27
Topic: general

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 Subsequently his trial counsel was superseded on appeal by counsel appointed by this court.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.

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Cited by: 11 opinions

RIVERA v. UNITED STATES,477 F.2d 927(3rd Cir. 1973)

MARCO ANTONIO RIVERA, APPELLANT, v. UNITED STATES OF AMERICA.

No. 72-1669.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit Rule 12(6) March 1, 1973.

Decided April 27, 1973.

Charles B. Burr, II, Obermayer, Rebmann, Maxwell Hippel, Philadelphia, Pa., for appellant.

Joel D. Sacks, U.S. Atty., Julio A. Brady, Asst. U.S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.

Appeal from the United States District Court for the Southern District of New York.

Before SEITZ, Chief Judge and VAN DUSEN and ALDISERT, Circuit Judges.

[1] OPINION OF THE COURT

SEITZ, Chief Judge.

[2] This is an appeal from a denial by the district court of a motion under28 U.S.C. § 2255to vacate sentence and set aside a judgment.

[3] 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 Subsequently his trial counsel was superseded on appeal by counsel appointed by this court.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.Page 928

[4] 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.

[5] 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.SeeWilliams v. United States,307 F.2d 366(9th Cir. 1962).¹Since a panel of this court has previously denied reconsideration, it is evident that if a motion to recall the mandate is filed²and granted, the reinstatement issue should then 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.

[6] The judgment of the district court will be affirmed.Page 999

Overruled on another issue,Kaufman v. United States,394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969). ↩
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. ↩