485 F2d 250 Bartelt v. Guinn US

485 F.2d 250

John Frederick BARTELT, Petitioner-Appellant,
Hon. Ernest GUINN, District Judge, U.S. District Court for
the Western District of Texas, Respondent-Appellee.

No. 72-2235 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Oct. 15, 1973.

Carl B. Lee, (Court-Appointed), Dallas, Tex., for petitioner-appellant.

William S. Sessions, U. S. Atty., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.


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John Frederick Bartelt filed a motion to vacate sentence, 28 U.S.C. Sec. 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.


Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I