485 F2d 250 Bartelt v. Guinn US

485 F.2d 250

John Frederick BARTELT, Petitioner-Appellant,
v.
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.

PER CURIAM:


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1

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.

2

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).

3

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.

4

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