Robert C. Sigler, Omaha, Neb., on brief, for appellant.
Daniel E. Wherry, U. S. Atty., and Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., on brief, for appellee.
Before HEANEY, ROSS and HENLEY, Circuit Judges.
Thomas Robert Wilson filed a motion to vacate judgment and sentence, pursuant to 28 U.S.C. § 2255. He alleged that certain materials were not made available to him in violation of the Jencks Act, 18 U.S.C. § 3500 (1957), or the holding in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); that the failure of counsel appointed to advise him to move for production of the materials constituted ineffective assistance of counsel; that his waiver of assistance of counsel was constitutionally defective; and that his court-appointed counsel did not advise him of his right to file a petition for certiorari in the Supreme Court after we affirmed his conviction on direct appeal in United States v. Wilson, 523 F.2d 828 (8th Cir. 1975).
We find no error in the district court's denial of relief on appellant's allegation of Jencks Act violations because such a claim is not cognizable under 28 U.S.C. § 2255. Houser v. United States, 508 F.2d 509, 515 (8th Cir. 1974); Black v. United States, 269 F.2d 38, 42 (9th Cir. 1955), cert. denied,
We do, however, grant relief to accord appellant his right to petition the Supreme Court for certiorari. Failure to advise a defendant of his right to petition for certiorari in the Supreme Court violates his right to effective assistance of counsel as guaranteed by Fed.R.Crim.P. 44(a) and the Criminal Justice Act of 1964, 18 U.S.C. § 3006A (1970), see Report of the Committee to Implement the Criminal Justice Act of 1964, 36 F.R.D. 282, 291 (1965); Lacaze v. United States,
Accordingly, we recall our mandate, issued November 20, 1975, and simultaneously issue a new mandate reaffirming our prior affirmance of the judgment of conviction and, by a copy of this order, advise appellant and his present appointed counsel of appellant's right to petition for certiorari.
This document cites
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 3006 - Sec. 3006. Assignment of counsel - (Rule)
- U.S. Code - Title 18: Crimes and Criminal Procedure - 18 USC 3500 - Sec. 3500. Demands for production of statements and reports of witnesses
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 2255 - Sec. 2255. Federal custody; remedies on motion attacking sentence
- U.S. Supreme Court - Ross v. Moffitt, 417 U.S. 600 (1974)
- U.S. Supreme Court - Doherty v. United States, 404 U.S. 28 (per curiam) (1971)
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