CLARY, Senior District Judge.
The petitioner has filed a pro se "'Motion For The Entry Of An Appropriate Order Which Will Permit An Out-Of-Time Appeal' and 'Motion For Appointment of Appellate Counsel For Indigent Defendant'" together with an "Amended Petition For Belated Appeal And Appointment Of Appellate Counsel, Or In The Alternative, Petition to Vacate Judgment Or Petition For Coram Nobis."
He was convicted on two counts of violating the Mann Act, 18 U.S.C. §§ 2421, 2422, in Federal District Court for the Eastern District of Pennsylvania in 1961. He served the two, two year sentences, imposed concurrently, between the years 1961 and 1963. He now alleges that he was denied the right to appeal from that conviction. He is presently serving a three year sentence in the Apalachee Correctional Institute, a Florida State prison, for operating a gambling house in violation of Florida State law § 849.01. He seeks vacation of his 1961 sentence and the expunging of the record of conviction.
We have decided to treat this as a petition for a writ of error coram nobis, for which this court has jurisdiction under the All Writs Statute, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954). Under the statute, coram nobis lies to correct errors of a most fundamental character when the petitioner is no longer serving a sentence imposed by a federal district court, and therefore neither habeas corpus nor a motion to vacate sentence under 28 U.S.C. § 2255 is available. United States v. Morgan supra; McFadden v. United States, 439 F.2d 285 (8th Cir. 1971); Azzone v. United States, 341 F.2d 417 (8th Cir. 1965) cert. denied, 381 U.S. 943, 85 S. Ct. 1782, 14 L. Ed. 2d 706; Kelly v. United States, 299 F. Supp. 1367 (S.D.N.Y. 1969); United States v. Sullivan, 278 F. Supp. 626 (D.C.Hawaii 1968).
The petitioner alleges ineffective assistance of counsel and denial of the right to appeal due to the failure of his retained counsel to file notice of appeal although requested to do so. He alleges no errors at trial which would result in the reversal of his conviction on appeal.
At the 1961 trial in Philadelphia, he was represented by two retained counsel, Francisco A. Rodriguez of Tampa, Florida and Leonidas A. Allen of Philadelphia. Following the trial, Mr. Rodriguez returned to Florida. The petitioner was represented at the sentencing by Mr. Allen. The transcript of the sentencing reveals that the petitioner discussed an appeal with Mr. Rodriguez immediately after the trial. The transcript also reveals that the court informed the petitioner of his right to counsel "at all times." No steps were taken to perfect an appeal by Mr. Rodriguez, Mr. Allen or by the petitioner himself, and the petitioner merely served out his sentence.
At the time of the trial, Fed. Rule Crim.Proc. 37(a)(2) required the sentencing judge to inform an unrepresented defendant of his right to appeal. The clerk, upon request, was required to file notice of appeal for the defendant.
In 1966, this provision was transferred to Rule 32(a)(2). It now applies whether or not the defendant is represented by counsel, and it includes a requirement that he be informed of his right to appeal in forma pauperis.
However, Rule 32(a)(2) is not retroactive. United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969), cert. denied, 397 U.S. 925, 90 S. Ct. 929, 25 L. Ed. 2d 105 (1970); Felder v. United States, 314 F. Supp. 668 (S.D.N.Y.1970), aff'd, 429 F.2d 534 (1970), cert. denied, 400 U.S. 908, 91 S. Ct. 152, 27 L. Ed. 2d 147 (1970); Jacobs v. United States, 291 F. Supp. 496 (C.D.Cal.1968). Therefore, under the law existing at the time of sentencing, no error was committed by the Court.
Nevertheless, the petitioner's constitutional right to counsel on appeal, appointed by the court if he is indigent, does operate retroactively; Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956); Rodriguez v. United States,
395 U.S. 327, 89 S. Ct. 1715, 23 L. Ed. 2d 340 (1968); Breen v. Beto, 421 F.2d 945 (5th Cir., 1970).
The question then is whether this case presents the kind of "fundamental error," under all the facts and circumstances, required for relief by way of coram nobis. "Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only through circumstances compelling such action to achieve justice." United States v. Morgan, supra 346 U.S. at 511, 74 S. Ct. at 252. Deliberate failure to use a known remedy at the proper time may bar subsequent reliance on the defaulted right. United States v. Morgan, supra, 346 U.S. at 511, 74 S. Ct. 247.
The facts of this case are almost identical to McFadden v. United States, supra. In that case the petitioner, while serving a prison sentence for a second offense, filed a petition alleging ineffective assistance of counsel at his first conviction, allegedly due to the failure of his retained counsel to inform him of his right to appeal in forma pauperis. As a result, he failed to effect an appeal. The first conviction was thirteen years earlier, and the sentence had been served.
The district court gave two grounds for denying relief. First, drawing a distinction between section 2255 and coram nobis, it felt that because of the length of time since conviction and release from the sentence "it is necessary to allege grounds for appeal in order to state grounds for relief under this unusual writ." McFadden v. United States, 312 F. Supp. 820 (E.D.Mo.1970). Secondly, the court could find no adverse legal consequences flowing from the first conviction because, although he qualified as a second offender, his second sentence was well within the maximum sentence available for first offenders. McFadden, supra, at 822.
On appeal, the Court of Appeals for the Eighth Circuit upheld the lower court, stating:
"We conclude petitioner's claim that he was denied his right to appeal does not present an error of the most fundamental character since his petition does not set forth a single ground calling for the reversal of his 1957 convictions. Petitioner has also failed to show that he is suffering outstanding adverse legal consequences from these convictions. There is substantial doubt that even a successful appeal of McFadden's 1957 convictions would redound to his benefit, since his 1966 sentences were well within the permissible limits of sentencing him as either a first or second offender and any loss of civil rights flowing from the 1957 convictions now flow with equal force from the 1966 convictions. Finally, McFadden has failed to state sound reasons for not seeking appropriate earlier relief." McFadden v. United States, 439 F.2d 285, 287 (8th Cir. 1971)