not published in Federal Reporter
How later courts described this case
- not published in Federal Reporter
Written by the judges who cited it.
The opinion
McCREE, Circuit Judge
(concurring in part and dissenting in part).
I concur in the opinion of the majority in all respects except one. The majority remands the case to the District Court with instructions to conduct an evidentiary hearing and to determine the following issues: whether appellant failed to appeal his criminal conviction because he was unaware of this right and neither the trial court nor his appointed counsel informed him of his right to an appeal and, if the answer to this question is affirmative, whether there are any meritorious issues he might assert on appeal which have not been decided already in one of the previous post-conviction proceedings. I would require the District Court to determine only the first issue, and, if resolved in appellant’s favor, to grant the relief indicated in the majority opinion.
To require appellant to demonstrate that he can present meritorious appellate issues creates an invidious discrimination. A defendant who files a timely notice of appeal does not have to sustain this burden. To the contrary, he can raise any issue, regardless of the ultimate determination of its merit. If appellant can establish that he was denied his one appeal as a matter of right only because the trial court or his attorney failed to perform what I consider a constitutionally required obligation, United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969); Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969); Gairson v. Cupp, 415 F.2d 352 (9th Cir. 1969); Wynn v. Page, 369 F.2d 930 (10th Cir. 1966), he should not be placed in a worse position. He should be permitted to raise any issue which he and his appointed counsel deem worthy of consideration by the appellate court.