John Frederick Bartelt v. Hon. Ernest Guinn, District Judge, U.S. District Court for the Western District of Texas

485 F.2d 250, 1973 U.S. App. LEXIS 7529

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 15, 1973
• Docket: 72-2235
• Status: Published

Opinion

PER CURIAM:

John Frederick Bartelt filed a motion to vacate sentence, 28 U.S.C., § 2255, alleging that his retained counsel had failed to file and prosecute a direct appeal from a criminal conviction despite assurances that such would be done. The motion was denied without a hearing and Bartelt appeals.

Upon examination of the record, we find that an evidentiary hearing should have been held, with appropriate findings of fact and conclusions of law, Atilus v. United States, 5 Cir., 1969, 406 F.2d 694; Fuentes v. United States, 5 Cir., 1972, 455 F.2d 910; Powers v. United States, 5 Cir., 1971, 446 F.2d 22; Gallegos v. United States, 5 Cir., 1972, 466 F.2d 740; Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969).

The judgment of the District Court is accordingly vacated and‘the cause remanded for a full evidentiary hearing on the motion, at which time petitioner will be allowed to testify and, as an indigent, will be allowed appointed counsel.

Vacated and remanded.