Bartelt v. U.S., 74-1793
| Decision Date | 26 December 1974 |
| Docket Number | No. 74-1793,74-1793 |
| Citation | 505 F.2d 647 |
| Parties | John Frederick BARTELT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Summary Calendar.* *Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Victor R. Arditti, El Paso, Tex. (Court-appointed), for plaintiff-appellant.
William S. Sessions, U.S. Atty., San Antonio, Tex., William B. Hardie, Jr., Asst. U.S. Atty., El Paso, Tex., for defendant-appellee.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit judges.
Appellant filed a 2255 motion to vacate the sentence from a jury trial conviction under 8 U.S.C. 1324(a)(2), the illegal transportation of aliens. He alleged that his retained counsel was ineffective for failing to prosecute and perfect a direct criminal appeal. The District Court denied the motion without a hearing, and we vacated and remanded for an evidentiary hearing. Bartelt v. Guinn, 5 Cir., 1973, 485 F.2d 250.
At the evidentiary hearing the District Judge was faced with the conflicting testimony of the appellant and appellant's formerly retained counsel, Mr. Moyers, as to their agreement concerning appellant's appeal from the 8 U.S.C. 1324(a)(2) conviction and sentence of February 12, 1971.
A copy of a letter dated April 20, 1971 from Moyers to appellant was submitted into evidence in which Mr. Moyers stated that he would not pursue appellant's appeal since appellant's alleged new evidence had not been produced and Moyer's trial fee remained unpaid as well as any payment towards an appeal.
Appellant testified at the evidentiary hearing that his first indication that Moyers would not handle his appeal was in a letter sent to him by Moyers dated April 20, 1971, after the time for appeal. However, Moyers testified that the oral understanding all along was that he would proceed with an appeal only on the conditions that appellant's alleged new evidence was forthcoming and that appellant pay his legal fee for the trial and the appeal.
Choosing to credit the testimony of Mr. Moyers, 1 the District Court found that appellant's retained counsel adequately represented appellant and properly notified him that if legal fees and new evidence were not forthcoming, he could not handle the appeal. Further, the trial court found that appellant was aware from his past criminal record and experience that an indigent is entitled to an appointed attorney on appeal. 2
On these findings of fact, the District Court denied relief. The findings of the District Court are not clearly erroneous and we therefore affirm. United States v. Gypsum Co., 1948, 333 U.S. 364, 68 S.Ct. 525, 542, 92 L.Ed. 746, 765; Volkswagen of America, Inc. v. Jahre, 5 Cir., 1973, 472 F.2d 557, 559; Hayes v. United States, 5 Cir., 1972, 464 F.2d 1252, 1261; United States v. Strother, 5 Cir., 1972, 458 F.2d 424, 430; Martin v. United States, 5 Cir., 1968, 399 F.2d 708; Fed.R.Civ.P. 52(a).
We have carefully examined the record and are not 'left with a definite and firm conviction that a mistake has been committed.' B. H. Bunn Co. v. AAA Replacement Parts Co., 5 Cir., 1971, 451 F.2d 1254, 1260; Lee v. United States, 5 Cir., 1972, 466 F.2d 11, 15; Lanassee v. Travelers Ins. Co., 5 Cir., 1971, 450 F.2d 580, 583, cert. denied, Chevron Oil Co. v. California, 406 U.S. 921, 92 S.Ct. 1779, 32 L.Ed.2d 120; Lentz v. Metropolitan Life Ins. Co., 5 Cir., 1970, 428 F.2d 36, 39; Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776; Gibbs v. Tomlinson, 5 Cir., 1966, 362 F.2d 394, 397; Smith v. United States, 5 Cir., 1961, 287 F.2d 299, 301. The record contains sufficient evidence to support the trial court's finding.
Affirmed.
1 Attorney Moyers testified at several points throughout the evidentiary hearing that appellant was always aware that the appeal would not be pursued unless certain conditions were met:
After Mr. Bartelt was convicted I did talk to him about an appeal. I told him that I thought the only grounds of appeal-- let me back up and say that after he was already convicted, then he said he had some more witnesses that could prove that the two Government witnesses were lying. This had never been mentioned to me. They were suppose to be some of the family, some of these witnesses. This is the first time I had learned of it. I spoke to him and said we had to show that due diligence was exercised prior to trial and I would proceed with an appeal if he paid my fee, paid the expenses and paid my fee for the appeal, and if in fact these friends could come up with the evidence he claimed they could come up with, we would proceed.
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