James Patton v. United States

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2332
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James Patton, *
*
Appellant, *
* Appeal from the United
States
v. * District Court for the
* Southern District of
Iowa.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: July 1, 1997
Filed: July 10, 1997
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Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY,
Circuit Judges.
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PER CURIAM.
James Patton pleaded guilty to attempted bank robbery, in violation of 18 U.S.C.
§ 2113(a); he did not appeal his conviction and sentence. Patton subsequently
commenced these proceedings, arguing his counsel had rendered ineffective assistance
in several respects, including by failing to file an appeal on his behalf. The district
court construed the pleading as a motion under 28 U.S.C. § 2255, and summarily
dismissed it pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
determining that Patton’s ineffective-assistance allegations were conclusory and that
the motion, files, and records of the case conclusively showed he was not entitled to
relief. Patton appeals. We affirm in part, and reverse and remand in part.
As to most of counsel’s alleged ineffectiveness, we agree that Patton’s
allegations were conclusory. He failed to refer to specific facts indicating there might
be evidence to rebut the presumption that his counsel performed competently; or
demonstrating that his counsel’s conduct fell outside accepted professional standards,
and that, but for counsel’s unprofessional conduct, he would not have pleaded guilty.
See Hill v Lockhart, 474 U.S. 52, 58-60 (1985); United States v. Estes, 883 F.2d 645,
647 (8th Cir. 1989).
As to the appeal issue, however, we believe Patton’s allegations--that his counsel
failed to file an appeal, resulting in the loss of his right to appeal or collaterally attack
his sentence and conviction--were sufficient to withstand the district court’s initial
consideration of the motion. See Holloway v. United States, 960 F.2d 1348, 1357 (8th
Cir. 1992) (hearing required if motion, files, and records are inconclusive regarding
whether movant instructed counsel to file appeal); Hollis v. United States, 687 F.2d
257, 259 (8th Cir. 1982) (“ ‘where ineffective assistance of counsel deprives a
defendant of his right to appeal, courts have not required a showing of prejudice or of
likely success on appeal’ ”) (quoted case omitted), cert. denied, 459 U.S. 1221 1983.
Contrary to the government’s argument, Patton was not required to plead the grounds
on which he would have appealed. See Estes, 883 F.2d at 648. We therefore reverse
the district court’s dismissal as to this issue, and remand for further proceedings, during
which Patton will have to establish he instructed his counsel to file an appeal. See id.
We have not reviewed those claims Patton raises for the first time on appeal.
See id. at 648. We deny Patton’s third request for appellate counsel.
Accordingly, we affirm in part, and reverse in part.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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