*1 VOGEL, Before HEANEY Judges. United States Court of VOGEL, Judge. July 21, 1970. (the Appellant Iowa) presents question this court with the may deny it appellee, Blanchard, solely because of improper appeal notice, service of the had actual notification filing. cannot, We hold it and af- firm. originally
Blanchard was convicted of criminal solicitation thе Iowa State sentenced a term years February 14, not to exceed five on immediately He personally selected and retained ney, experienced member of bar, appeal. attorney proper file notices contacted another member of the bar written argument and oral attorney verbally convеyed notice County Attor- to the Assistant prosecuted and filed the case who A on written March notice for- copy notice was of that certified Attorney officе warded to the General's Furthermore, on March 14th, transcript written of all March entries in case was forwarded Court. formally written notice County Attor- served on the Assistant ney, Iowa law.1 Subsequently, the Assistant if see the court checked saw the filed. He notice of acknowledge service fully aware of thereof, clerk, thereof of serviсe Iowa Code Annotated reads: with evidence § 793.4 annexed thereto.” “An is taken indorsed thereon or pursuant party attorney attorney serving or his His filed merely requires рarty the adverse which or his Iowa’s Civil filing will who record in the the clerk district court the time parties. copies judgment, on the adverse the rendition of then serve writing taking- Annotatеd- Code See Iowa Civil the same such *2 90 cient for violation of due and had talked basis existence disagree. attorney regarding April it. On this factual situation. We 26, 1968, the As- motion was made certain Under to dismiss sistant of an is denial properly. to serve for failure Gavin, effective Leventhal v. 1 counsel. by the court motion was sustained See, also, Cir., 1968, 396 F.2d аttempt 29, per- An for 748, Entsminger Iowa, 1967, v. delayed appeal to enter mission Indeed, 1402, 87 18 L.Ed.2d S.Ct. August 16, 1968. summarily denied on by appointed failure or counsel retained attempted to extradite then Blanchard simple steps to commence for corpus through position habeas state process. is a blatant Ati denial of candidly ad- procеedings. His supra, lus v. 406 F.2d with the re- not familiar mitted 694; Cir., States, 8 Williams v. United appeals in quirements Iowa. for criminal 1968, 548; Wainwright 402 F.2d v. customarily he He also added that 1966, Simpson, Cir., 5 F.2d 360 according ways appealed civil code gross simple Distinctions between or appeals dismissed. were never negligence counsel, part on the of or be claims, peti- spitе counsel, appointed or tween retained or denied, ultimately the Su- tions were negligence passive active or between vote, Iowa, by preme a dividеd of Court part immaterial. of the state are ju- holding requirements to be is Whether counsel’s conduct classified Bennett, See, Blanchard v. risdictional. negligence gross or as or excusable Blanchard 167 N.W.2d activity the state’s is classified thereupon proceedings in the commenced irrelevant, passive or active is since District Cоurt United States appellee in either case been denied has That Iowa. of Southern complete appellate effective and review pe- Judge, granted his Stephenson, Chief through Compare, no fault of his own. resen- Iowa either tition ordered Gladden, Or., 1969, P.2d Shipman 453 properly ef- could him so that he tence (notice opposing 921 served on or, alternatively, re- appeal, fect an timely filed) counsel Wil Iowa him. From this order lease States, supra, liams v. 402 F.2d peals. (where cоunsel not even com 548 Ship- appellate proceedings). In mence court erred that Iowa contends Oregon man, stat holding as- effective was denied ed 925 of P.2d: 453 counsel’s because of counsel perform “The failure re- comply failure with the timely procedure a notice quirements 793.4 and is not ‘effective’ way in no to his сontributed Ala- Powell v. of counsel specifically, More nial of counsel. 45, 53 S.Ct. bama U.S. [287 gross only maintains misconduct diligent 158], advocacy re- Ed. nor part a com- of retаined such as quired [386 Anders California e.g., plete to commence L.Ed.2d U.S. S.Ct. Cir., 1969, 406 Atilus v. United timely The failure 493]. on. or affirmative coercion has after he forcing a man to aban- do is or been appeal, e.g., Ford v. don his incompetence as a matter of law and State, 1965, N.W.2d 258 Iowa equally process. is This denial of due of due denial constitute effective negligent counsel true whether
process by requiring defend- ‘in- appointed or retained. relinquish been ant to review. not between argued discrimination’ is vidious erroneous counsel’s can hire counsel good-faith the rich who attempted and Iowa’s be poor whom counsel must acquiescence are not mere therеin suffi-
9J
pointed,
Reincke,
but between those who are States
rel.
Cir.,
ex Maselli v.
represented by competent
129;
Shipman
383 F.2d
v. Glad-
gross- den,
prove
supra,
to be
those whose
speaking Examining for this said at whole, the record as we (1) Appellee note аp- 552 402 F.2d: that: desired to peal power and did lay- all in his as a was “It is our view Williams perfect appeal; (2) man to his by court-appointed abandoned his attorney аttempted appeal to during period him the allowed failed to serve written notice thereof on taking an it can be If County Attorney, the Assistant acting nominally was said thаt counsel verbally he did communicate the infor- him, result would be no differ- appeal official; mation as to the to such day undisputed ent. that on (3) Assistant knew unequivocally after sentence Williams of the and even saw actual to counsel of his desire advised his nothing; (4) the Attor- peal consistently and that he had Iowa re- position. maintained such appeal; (5) ceived written notice of the clearly record shows that Mr. Howard engaged while Iowa in no affirmative to understood appeal. Williams dеsired deny appellee misconduct to his (Emphasis supplied.) rights, advantage prompt it took of the counsel to take the “The appellee’s attorney’s рrocedural minor steps file a notice by summarily dismissing mistake appeal, by when his cli instructed representatives even its would, by ent to do as stated so were well awarе of the notice of in Columbia Dil District of way prejudiced, in and it harmed U.S.App.D. lane v. United delayed by omission serve such ‘such C. constitutes notice. extraordinary to a inattention Judge carefully Stephenson’s In Chief inef client’s interests as to amount to opinion, in considered conclu- he stated cogniza fective assistance of counsel sion: ble under Section 2255.’ See Hines v. 237 A.2d D.C.Ct. “It is of this Court that view Shockey, App.; People v. presented 25 Ill.2d when all circumstances (dissenting by N.E.2d whole, case are this considerеd opinion Shaefer). Justice The hold it must be concluded that ing majority of the case last petition- contributed to thé loss Shockey cited rights was reversed Illi appellate er’s in violation of nois, 84 S.Ct. XIV, Section Article Amendments Ed.2d 43. to the Constitution of the United is not to States America. This deprived hold Williams was “We any there is one act or omission on right his to effective as- the here, of the state or officers time the critical itself, in and of sufficient expiration between sentence constitute such a violation. Neverthe- and that time less, unjust. the result is Petitioner thereby deprived of his constitutional right should not be denied his review of convic- peal improperly which was tion.” presеnt under the here.” therefore, question, The real is agree Judge treatment afforded the accused Stephenson We invidiously the state classifies him as exceptiоnal and find that in circum consequently to shock the here, conscience stances process. See, to violate due denied and not afforded fair or the either his treatment of Iowa. of the District and order
The decision respects all affirmed. are in Judge (concurring). in the result. I concur believe failure of defendant’s following simple pro- of the 793.4
cedures mandated including no- *4 upon adverse tice of
prived defendant of effective of Williams the rule counsel within (8th solely 1968), affirm Cir. ground. however, not, prepared to amI prosecutor’s case that in this guide or correct defense taking ney’s steps in contrib- defendant’s invasion of the
uted to an rights. duty to take behalf coun- upon the defendant’s
client rested
sel. CAVERLY, Appellant, Leonard
James America, STATES
UNITED Appellee. States Court