Barnes v. U.S., 78-1484

• Decision Date: 01 September 1978
• Docket Number: No. 78-1484,78-1484
• Citation: 579 F.2d 364
• Parties: Robert Lee BARNES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 364

579 F.2d 364

Robert Lee BARNES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 78-1484

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 1, 1978.

Robert Lee Barnes, pro se.

William L. Harper, U. S. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges:

CHARLES CLARK, Circuit Judge:

Robert Lee Barnes appeals the district court's denial of his motion to vacate sentence under 28 U.S.C.A. § 2255. Barnes contends that counsel's misrepresentations to him induced him to plead guilty with the understanding that he would receive a single four-year prison sentence rather than the two consecutive four-year terms actually imposed by the district court. On appeal, Barnes challenges the adequacy of the hearing he received on his motion in the district court. Finding that Barnes has failed to meet the burden of showing his entitlement to Section 2255 relief, we affirm.

Barnes pled guilty to one count of a two count indictment for interstate transportation of a stolen motor vehicle in violation of 18 U.S.C.A. § 2313 and one count of a three count indictment ¹ for conspiracy to possess stolen goods moving in interstate commerce, a violation of 18 U.S.C.A. § 659. Barnes contends that the agreement contained a promise that he would serve only four years in prison. The district judge imposed consecutive four-year sentences on each count for a sentence totaling eight years. Paul Cobb, Barnes' original attorney, could not be in court when Barnes pled. David Bohannon, an attorney practicing with Cobb, went in his stead. Barnes contends that Bohannon told him that the government had agreed that he would receive a prison term of only four years in return for a plea of guilty.

The district court ordered an evidentiary hearing before a magistrate on Barnes' Section 2255 motion. Prior to the hearing, the district court required Barnes, as a condition for further proceedings on his motion, to submit his written statement of the facts surrounding his plea under penalty of perjury. Retained counsel represented Barnes at the hearing, but Barnes himself did not appear. The transcript of the plea-taking proceedings on its face supported the government's contention that a four-year term never was part of the plea bargain. Roy C. Etheridge, Barnes' former employer, testified, to the contrary, that, prior to Barnes' entering a plea, he overheard a conversation between Barnes and Bohannon in the hallway of the courthouse in which Bohannon told Barnes that he would get only a four-year sentence if he would plead guilty. Both Bohannon and Cobb testified for the government. According to Bohannon, his conversation with Barnes about the guilty plea did not take place in the hallway as Etheridge testified, but rather in a vacant courtroom where no one was present except Barnes and himself. Both Cobb and Bohannon testified that they never had told Barnes that the prosecutor had agreed to a sentence limited to four years as part of the plea bargain. In his pleadings, Barnes stated that his wife and a friend of his had also overheard the hallway conversation. Barnes' retained counsel represented at trial that these witnesses could not be located.

Liberally construing Barnes' Pro se briefs, we understand him to contend that the district court did not give him a hearing adequate to bring forth the facts that would show his entitlement to relief. First, Barnes challenges his hearing because he was not himself present. A defendant need not be present in the courtroom for a district court to hold a hearing and rule on a Section 2255 motion. 28 U.S.C.A. § 2255. Even when the district judge denies a petitioner's request to be present, we review his decision only to determine abuse of discretion. In the case at bar, however, the record does not show that the defendant ever asked to testify personally. The transcript of the hearing before the...