Marco Antonio Rivera, Appellant, v. United States of America, 477 F.2d 927 (3d Cir. 1973)

This is an appeal from a denial by the district court of a motion under 28 U.S.C. § 2255 to vacate sentence and set aside a judgment.

In 1968, appellant's retained counsel filed a notice of appeal from his conviction and life sentence. Subsequently his trial counsel was superseded on appeal by counsel appointed by this court. Appointed counsel did not file a brief and appendix as required by the rules of this court. Instead, he notified the court that he had been unable to find any basis for appeal. However, he took no other action. Many months later, after notice to counsel, the appeal was dismissed for want of timely prosecution.

Thereafter, appellant himself filed the Sec. 2255 motion with the district court claiming, inter alia, that he had been denied his right of direct appeal because of ineffective assistance of counsel. The district court denied the motion essentially on the ground that a Sec. 2255 proceeding cannot be employed as a method of reviewing the action of the Court of Appeals in dismissing an appeal. We agree. The incongruity of a district court ruling and then implementing its ruling that the Court of Appeals erred in dismissing an appeal is self-evident.

As the district court noted, appellant's remedy is by way of a motion directed to the Court of Appeals requesting a recall of the mandate so that it could determine whether the appeal should be reinstated. See Williams v. United States, 307 F.2d 366 (9th Cir. 1962).¹  Since a panel of this court has previously denied reconsideration, it is evident that if a motion to recall the mandate is filed²  and granted, the reinstatement issue should then be considered by the court en banc. We say this because of the court policy that a panel decision is not overturned except by en banc action.

The judgment of the district court will be affirmed.