ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA AT CIVIL ACTION NO. 73-580.
McLaughlin, Adams and Garth, Circuit Judges. Garth, Circuit Judge, concurring.
The threshold issue confronting us is whether Rothman filed a timely notice of appeal so as to afford this Court jurisdiction.
In 1960 Norman Rothman was convicted of interstate transportation of stolen firearms by the District Court for the Western District of Pennsylvania, and sentenced to five years' imprisonment.*fn1 On direct appeal this Court affirmed the judgment of the district court.*fn2 Rothman was incarcerated on this conviction from August 28, 1961 until February 18, 1965, at which time he was released on parole. The parole terminated on February 24, 1966.
Subsequent to completing the term in prison and the parole that resulted from his 1960 conviction, Rothman was convicted in the District Court for the Southern District of New York for unlawful transportation of stolen securities. On the basis of this second conviction Rothman was sentenced on January 7, 1972 to five years' imprisonment. Rothman was serving this second sentence at the time he filed in the Western District a "Motion to Vacate Sentence Pursuant to 28 U.S.C. 2255." The motion to vacate sentence referred to the sentence entered pursuant to the 1960 conviction in the Western District and is the basis for the present appeal.
After Rothman filed the Motion to Vacate Sentence, a third sentence was imposed on him. The third sentence was entered by the Southern District of Florida following Rothman's plea of guilty there to two counts of fraud. The Florida sentence consisted of two years' imprisonment on each count, to run concurrently with each other. Eighteen months of the Florida sentence were to run concurrently with the five year sentence that had been imposed by the New York court.
Before us now is Rothman's appeal from the denial of the motion filed in the Western District of Pennsylvania that challenges his 1960 conviction. Rothman alleges in his motion: that during his trial in the Western District he shared counsel with Joseph Merola, a codefendant; that Merola attended strategy conferences between Rothman and Rothman's attorney; that Merola was convicted for his part in the crime, but his sentence was later commuted by Presidential order on November 3, 1962; that Merola was an undercover agent for the government before, during, and after the trial; and that Rothman did not learn of Merola's status as an informant until the time of the publicity surrounding the commutation of Merola's sentence.*fn3 Rothman contends, in effect, that the presence of Merola, an undisclosed informant, during the confidential discussions between Rothman and his counsel, deprived Rothman of his right to counsel and his right to due process. Rothman therefore asked the Western District to vacate the 1960 conviction on which he had already completed serving his sentence.
Rothman also asserts that in refusing to reduce his sentence on his 1972 conviction, pursuant to a motion under Rule 35 of the Federal Rules of Criminal Procedure,*fn4 the Southern District of New York relied upon the constitutionally invalid 1960 conviction. The 1972 sentence that he was serving when he filed the motion involved here, Rothman argues, is invalid under United States v. Tucker.*fn5 Rothman therefore asked the Western District of Pennsylvania to vacate his 1960 conviction, in order that he might then have his 1972 sentence corrected by the Southern District of New York.*fn6
The government moved in the Western District to dismiss Rothman's petition brought under section 2255, on the jurisdictional ground that Rothman was not then "in custody" under the 1960 conviction attacked, as required by the statutory language.*fn7 Rothman responded that the 1960 conviction had been relied upon by the Southern District of New York in denying Rothman's Rule 35 motion to reduce the sentence he was serving at the time he filed his 2255 motion in the Western District.
Judge Gourley, by opinion and order dated November 8, 1973, granted the government's motion without conducting a hearing. Rothman moved for rehearing in a letter dated and apparently mailed December 4, 1973, which was filed by the district court on December 10, 1973.*fn8 Although the motion for rehearing was not filed within 10 days after entry of judgment, and therefore was not timely, Judge Gourley considered the motion for rehearing on its merits and denied it in an opinion and order dated December 26, 1973.
Rothman then mailed a pro se notice of appeal, in the form of a letter,*fn9 from the federal penitentiary in Atlanta to the Clerk for the Western District of Pennsylvania. The letter is dated January 4, 1974. It was received by the Clerk's Office on January 17, 1974, but for lack of a filing fee was not filed until January 30, 1974 when ...