How have courts dealt with the issue of attorney failure to file a timely notice of appeal?

But in the case at bar one of appellant's contentions is that his attorney failed to file a timely notice of appeal after being instructed to do so. Failure or refusal of counsel to file notice of appeal has been a frequent contention of petitioners in Section 2255 proceedings. In a recent case, Rivera v. United States, (9 Cir., May 28, 1963) 318 F.2d 606 (footnote 4) we did not reach the problem since it was raised for the first time in the briefs on appeal.

We think Fay v. Noia, (1963) 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 and Rule 37, Rules of Criminal Procedure, have an impact on this problem, but before discussing their effect we review briefly the current case law.

We summarize the cases in the margin.⁶ They demonstrate generally the following principles:

(1) failure to appeal may not be excused by a mere showing of neglect of counsel;

(2) relief will be denied where there was a knowing or calculated decision not to appeal;