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Wilkins v. United States

U.S.
Apr 30, 1979
441 U.S. 468 (1979)

Summary

vacating judgment of the Court of Appeals and remanding for further proceedings after finding that appellate counsel promised that he had filed a petition for certiorari but in fact had not

Summary of this case from Thomas v. United States

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 78-5885.

Decided April 30, 1979

Held: Where the pro se petitioner's untimely petition for certiorari to review the Court of Appeals' affirmance of petitioner's federal convictions alleges that his court-appointed attorney had failed to file a timely petition as requested by petitioner, this Court will, as suggested by the Solicitor General and even though petitioner did not first seek relief in the Court of Appeals, grant certiorari, vacate the Court of Appeals' judgment, and remand the case to the Court of Appeals for further proceedings, including the re-entry of its judgment affirming petitioner's convictions and, if appropriate, appointment of counsel to assist petitioner in seeking timely review of that judgment in this Court.

Certiorari granted; 559 F.2d 1210, vacated and remanded.


The pro se petitioner was convicted in a Federal District Court on criminal charges, 422 F. Supp. 1371 (ED Pa. 1977), and the Court of Appeals for the Third Circuit affirmed the convictions on June 9, 1977, by judgment order. 559 F.2d 1210. This petition, filed on December 14, 1978, is therefore 17 months out of time as a conventional petition for certiorari under this Court's Rule 22(2).

But this is not a conventional petition for certiorari. The petitioner states that he asked his court-appointed lawyer to file a timely petition for certiorari and that in September 1977 he received an assurance from the lawyer that this request had been honored. In July 1978, the petitioner wrote to the Clerk of this Court to inquire about his case and learned that no such petition had ever been filed. He then wrote several letters to his lawyer, but the letters were never answered. All these factual allegations are supported by the petitioner's affidavit and by the affidavits of his wife and his minister.

The petition now before us presents a single question:

"What remedy is available for petitioner when court-appointed attorney failed and refused to file timely petition for writ of certiorari in defiance of the petitioner's written request that same be done?"

The answer to that question is to be found in the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (c), 3006A (d)(6), and 3006A (g). The Solicitor General interprets these provisions to mean that a person whose federal conviction has been affirmed is entitled to a lawyer's help in seeking certiorari here. Indeed, the Courts of Appeals for all of the Circuits provide in their rules or in plans adopted pursuant to the Criminal Justice Act that a court-appointed lawyer must, if his client wishes to seek review in this Court, represent him in filing a petition for certiorari. Had the petitioner presented his dilemma to the Court of Appeals by way of a motion for the appointment of counsel to assist him in seeking review here, the court then could have vacated its judgment affirming the convictions and entered a new one, so that this petitioner, with the assistance of counsel, could file a timely petition for certiorari. Cf. Doherty v. United States, 404 U.S. 28 (1971); Schreiner v. United States, 404 U.S. 67 (1971).

The Criminal Justice Act Plan adopted by the Court of Appeals for the Third Circuit provides:
"If, after an adverse decision by the Court of Appeals, a review by the Supreme Court of the United States is to be sought, the appointed attorney shall prepare a petition for certiorari and other necessary and appropriate documents in connection therewith." See A Plan for the United States Court of Appeals for the Third Judicial Circuit Pursuant to the Criminal Justice Act of 1964, § III-6 (effective Sept. 1, 1971).
For comparable provisions or rules in effect in other Circuits, see generally United States Courts of Appeals Rules, 28 U.S.C.A. (Supp. 1978). See also plans under the Criminal Justice Act adopted by the Courts of Appeals for the Fourth, the Seventh, and the District of Columbia Circuits.

The Solicitor General has recommended that we grant certiorari, vacate the judgment, and remand this case to the Court of Appeals so that a timely petition for certiorari to review the appellate judgment can be filed. Even though this petitioner, unlike the claimants in the Doherty and Schreiner cases, did not first apply to the Court of Appeals for relief, we agree with the suggestion of the Solicitor General.

The Court of Appeals, the Solicitor General, and this Court all have a strong interest in ensuring that lawyers appointed to aid indigents discharge their responsibilities fairly. Yet this prisoner's story of his appointed lawyer's indifference to his legitimate request for help is all too familiar. The petitioner's decision to apply directly to this Court for relief is under these circumstances understandable. Accordingly, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals for further proceedings, including the re-entry of its judgment affirming the petitioner's convictions and, if appropriate, appointment of counsel to assist the petitioner in seeking timely review of that judgment in this Court.

It is so ordered.

Petitioner having made no substantive challenge to the judgment of the Court of Appeals in his petition for certiorari, MR. JUSTICE REHNQUIST dissents from the Court's action in vacating that judgment.

Because MR. JUSTICE STEVENS believes the Court of Appeals is the forum in which petitioner's allegations should be evaluated in the first instance, he would not vacate that court's judgment summarily.

MR. JUSTICE POWELL took no part in the decision of this case.


Summaries of

Wilkins v. United States

U.S.
Apr 30, 1979
441 U.S. 468 (1979)

vacating judgment of the Court of Appeals and remanding for further proceedings after finding that appellate counsel promised that he had filed a petition for certiorari but in fact had not

Summary of this case from Thomas v. United States

explaining that appointed counsel's failure to file certiorari petition violated Third Circuit's CJA plan, but not addressing constitutional grounds

Summary of this case from Ahumada v. United States

In Wilkins v. United States, 441 U.S. 468, 99 S.Ct. 1829, 60 L.Ed.2d 365 (1979), the Supreme Court provided relief, under the Criminal Justice Act ("CJA"), for an out-of-time pro se petitioner whose counsel never filed a petition for certiorari despite assurances that the petition was filed.

Summary of this case from U.S. v. Tejeda-Ramirez

In Wilkins v. United States, 441 U.S. 468, 99 S.Ct. 1829, 60 L.Ed.2d 365 (1979), the Supreme Court provided relief, under the Criminal Justice Act, for an out-of-time pro se petitioner whose counsel never filed a petition for certiorari despite assurances from his counsel that the petition was filed.

Summary of this case from U.S. v. Joseph

In Wilkins, as in the case before us, court-appointed counsel failed to file a petition for certiorari after being requested to do so.

Summary of this case from U.S. v. Smith

In Wilkins v. United States, 441 U.S. 468, 469, 99 S.Ct. 1829, 60 L.Ed.2d 365 (1979), the Supreme Court held that appointed counsel violated the Third Circuit's CJA plan by failing to file a certiorari petition, contrary to his assurances to the client.

Summary of this case from Pena v. U.S.

In Wilkins, the Supreme Court examined the proper remedy for a defendant whose court-appointed attorney had failed to file a timely petition for writ of certiorari despite a defendant's written request.

Summary of this case from U.S. v. Price

In Wilkins, the Supreme Court noted that under the Criminal Justice Act of 1964, 18 U.S.C. §§ 3006A(c), 3006A(d)(6), and 3006A(g), and the Criminal Justice Act Plan adopted by the Courts of Appeals, a person whose federal conviction has been affirmed is entitled to assistance from his court-appointed counsel in seeking certiorari upon the federal defendant's written request.

Summary of this case from United States v. Sotelo

In Wilkins, the Supreme Court vacated the prior affirmance of the defendant's conviction by the United States Court of Appeals for the Third Circuit. This procedure required the court of appeals to reexamine its prior opinion and to reenter its prior decision, if appropriate.

Summary of this case from United States v. Sotelo

In Wilkins, the defendant asked his counsel to file a petition for writ of certiorari within the filing period, and counsel promised to do so on petitioner's behalf.

Summary of this case from United States v. Hopkins

In Wilkins, the defendant instructed his court-appointed counsel to timely file a petition for writ of certiorari with the Supreme Court, and counsel promised to do so. Wilkins, 441 U.S. at 468.

Summary of this case from United States v. Hopkins

remanding and directing circuit court to appoint counsel for the defendant, if necessary, to pursue certiorari from adverse appellate ruling

Summary of this case from Jimenez v. Stone

In Wilkins v. United States, 441 U.S. 468 (1979), the Supreme Court provided relief under the applicable Criminal Justice Act Plan ("CJA Plan"), for an out-of-time pro se petitioner whose counsel never filed a petition for certiorari despite assurances that he had done so. The CJA Plans for all of the courts of appeal then provided that a court-appointed lawyer must, if his client wished to seek further review in the Supreme Court, represent that client in filing a petition for certiorari.

Summary of this case from United States v. King

In Wilkins, an inmate sought certiorari after his court-appointed appellate counsel refused the inmate's written request to file a petition for certiorari, in violation of the Third Circuit's rules implementing the CJA. 441 U.S. 468.

Summary of this case from ROSA v. U.S.

In Wilkins, the United States Supreme Court held that the Criminal Justice Act requires appointed counsel to pursue the proceedings through the filing of a timely certiorari petition.

Summary of this case from Brown v. U.S.

In Wilkins, it was not until the defendant wrote the clerk nearly a year later that he learned his attorney had failed to file the petition.

Summary of this case from Cline v. U.S.
Case details for

Wilkins v. United States

Case Details

Full title:WILKINS v . UNITED STATES

Court:U.S.

Date published: Apr 30, 1979

Citations

441 U.S. 468 (1979)
99 S. Ct. 1829

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