1

The Honorable Jimm Larry Hendren, United States District

Judge for the Western District of Arkansas. 

_________________

Nos. 95-2506/2876

_________________

United States of America, *

*

Appellee, *

* Appeals from the United States

v. * District Court for the

* Western District of Arkansas.

Chad Allen Beers, *

* [PUBLISHED]

Appellant. *

___________

 Submitted: February 2, 1996

 Filed: February 7, 1996 ___________

Before McMILLIAN, WOLLMAN, and MURPHY, Circuit Judges. ___________

PER CURIAM.

This is a consolidated direct criminal appeal and appeal from

the district court's1 order partially granting Chad Allen Beers's

28 U.S.C. § 2255 motion to vacate his sentence. We affirm in both

cases.

A jury found Beers guilty of kidnapping and interstate

transportation of a stolen vehicle, and not guilty of using a

firearm during a crime of violence. The district court's judgment

of conviction and sentence was entered on August 30. On that day,

while in custody waiting to be transported to federal prison, Beers

escaped; he was arrested eight days later in Nebraska and was

confined in a county jail there. 
 2

The Honorable Beverly R. Stites, United States Magistrate

Judge for the Western District of Arkansas.

-2-

 After his arrest, Beers filed a section 2255 motion claiming,

inter alia, ineffective assistance as a result of his attorney's

failure to file a notice of appeal despite Beers's having requested

him to do so. After a hearing, at which Beers's counsel admitted

Beers had made the request and he had failed to file the notice of

appeal, the magistrate judge2 concluded Beers was denied the right

to appeal. The magistrate judge recommended vacating the prior

judgment of conviction and sentence and entering a new judgment,

thereby enabling Beers to appeal within ten days of the entry of

the new judgment. The magistrate judge also recommended a stay of

any other ineffective-assistance claims brought in the section 2255

motion, pending the outcome of the direct appeal. The district

court vacated only the sentence, concluding that there was no

reason to disturb the conviction. The court then reimposed the

same sentence and advised Beers he had ten days to appeal. The

district court also stayed Beers's other claims of ineffective

assistance, administratively terminating them pending resolution of

a direct appeal. 

Beers appealed both the judgment of conviction and sentence

(No. 95-2506), and the ruling on the section 2255 motion which

vacated only the sentence (No. 95-2876). He argues the district

court should have vacated the judgment of conviction as well as the

sentence, because the failure to vacate his conviction will

prejudice his ability to get federal-sentence credit for time

served in the county jail in Nebraska. Beers also argues he

received ineffective assistance of trial counsel when counsel

failed to object to the prosecution's inflammatory closing

argument. 

We conclude that, in vacating only the sentence, the district

court complied with the procedures we have prescribed when a
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defendant has been unconstitutionally deprived of appellate review

because of ineffective assistance of counsel. See Hollis v. United

States, 687 F.2d 257, 259 (8th Cir. 1982) (procedure is to vacate

sentence; time for appeal then commences to run from date of

resentencing), cert. denied, 459 U.S. 1221 (1993); Williams v.

United States, 402 F.2d 548, 552 (8th Cir. 1968). Moreover, by

escaping, Beers removed himself from official detention. See

Moreland v. United States, 968 F.2d 655, 657 n.6 (8th Cir.) (en

banc), cert. denied, 113 S. Ct. 675 (1992). He would not be

entitled to federal-sentence credit for any time he may have spent

in state custody on state charges. See 18 U.S.C. § 3585(b).

As to the claim based on counsel's failure to object,

ineffective-assistance claims are generally not properly presented

for the first time on direct appeal. United States v. Logan, 49

F.3d 352, 361 (8th Cir. 1995). Because the district court stayed

consideration of Beers's other ineffective-assistance claims

pending resolution of his direct appeal, and because we wish to

prevent piecemeal litigation, we decline to consider this claim at

this time. Under the district court's order, Beers has thirty days

after any affirmance of his conviction and sentence to reassert his

ineffective-assistance claims in the district court. At that time,

Beers should seek to assert this claim as well.

 

 Accordingly, we affirm the judgment of conviction and

sentence, and affirm the district court's order partially granting

Beer's section 2255 motion and staying his ineffective-assistance

claims. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.