United States v. Percy James Pearce

ORDER

In appeal No. 91-10584, Percy James Pearce appeals from his conviction following his guilty plea to armed bank robbery in violation of 18 U.S.C. § 2113 (a) & (d). He contends that the district court erred by denying his motion to withdraw his plea. The government contends that we lack jurisdiction to consider this appeal. We remand.

I.

Pearce pled guilty on December 30, 1980. On January 19, 1981, the district court denied his motion to withdraw the guilty plea and sentenced Pearce to 25 years imprisonment. On April 9, 1981, Pearce filed a Fed. R.Crim.P. 35 motion, which the district court denied. Pearce filed a 28 U.S.C. § 2255 motion on November 7, 1985. The district court denied the § 2255 motion on February 27, 1986, and Pearce’s appeal from that denial was dismissed as untimely on August 13, 1986.

On September 8, 1987, Pearce filed a second § 2255 motion, contending that he was denied effective assistance of counsel when his attorney failed to file a direct appeal from the denial of his motion to withdraw the guilty plea. The district court erroneously denied this § 2255 motion on the ground that Pearce pled guilty and therefore was ineligible to appeal his…