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

Fifth Circuit

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 of Appeals for the Fifth Circuit·Decided October 15, 1973·No. 72-2235·Published·Cited by 4 cases

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.

Free access — add to your briefcase to read the full text and ask questions with AI

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.

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 (5th Cir. 1973).

Pincite

485 F.2d 250 (John Frederick Bartelt v. Hon. Ernest Guinn, District Judge, U.S. District Court for the Western District of Texas) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related