Ferguson v. U.S., 81-7539

• Decision Date: 07 March 1983
• Docket Number: No. 81-7539,81-7539
• Parties: Roger Dale FERGUSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1071

699 F.2d 1071

Roger Dale FERGUSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 81-7539.

United States Court of Appeals, Eleventh Circuit.

March 7, 1983.

Perry E. Pearce, Birmingham, Ala. (Court Appointed), for plaintiff-appellant.

Thomas H. Figures, Asst. U.S. Atty., Mobile, Ala., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and MORGAN, Senior Circuit Judge.

LEWIS R. MORGAN, Senior Circuit Judge:

Appellant challenges the district court's denial of his motion to vacate, set aside or correct his prison sentence pursuant to 28 U.S.C. Sec. 2255. For the following reasons, we affirm.

In August of 1980, appellant was charged with escape from federal custody in violation of 18 U.S.C. Sec. 751. He initially pled not guilty but changed his plea to guilty three weeks after arraignment. At the sentencing hearing, appellant stated that his plea was completely voluntary and not given in reliance on any plea bargaining. The district court then sentenced him to three years in prison. On December 8, 1980, appellant filed a motion to vacate the sentence pursuant to 28 U.S.C. Sec. 2255, claiming that he received ineffective assistance from his retained counsel. He alleged that his attorney mistakenly advised him a plea bargain existed, thereby inducing his guilty plea, and that the same attorney failed to file an appeal after being instructed to do so. The district court summarily denied appellant's motion with respect to his alleged reliance on the existence of a plea agreement, but ordered an evidentiary hearing before a magistrate with respect to the claim concerning his attorney's failure to file an appeal. A magistrate held an evidentiary hearing in April of 1981 and concluded that appellant's motion should be denied. The district court adopted the magistrate's recommendation and entered an order denying the motion. In this appeal from that order, appellant raises two issues.

Appellant first argues that the district judge erred in summarily denying the portion of his claim of ineffective assistance of counsel relating to his guilty plea. In essence, he contends that his guilty plea was involuntary and void because his attorney mistakenly assured him a plea agreement had been successfully negotiated. After a full review of the record and relevant law, we reject this argument. Appellant's motion to vacate alleged, without supporting affidavits or other evidence, that he pled guilty only after his attorney assured him a plea agreement existed, and that he told the district judge of this belief during the sentencing hearing. The record of the sentencing hearing is totally contradictory of these assertions, however, and compels us to conclude that appellant pled guilty with full understanding and volition. The sentencing judge questioned appellant, his attorney, and the prosecuting attorney, about plea bargaining, and each responded that a plea agreement did not exist. Appellant expressly stated that his plea was in no way conditioned on an agreement with the prosecution. Therefore, the district court below was faced with a record totally inconsistent with the unsupported allegations made by appellant in his motion to vacate. Under these circumstances, the district court properly refused to grant an evidentiary hearing on the issue. Bryan v. United States, 492 F.2d 775 (5th Cir.) (en banc), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). Appellant responds that Bryan isn't applicable to his case since at the evidentiary hearing on the claim concerning failure to appeal his original attorney testified that there may have been some confusion concerning a plea agreement. Therefore, he argues, our decisions in Dugan v. United States, 521 F.2d 231 (5th Cir.1975) and United States v. McCord, 618 F.2d 389 (5th Cir.1980), entitle him to an evidentiary hearing. Appellant fails to realize, however, that these cases mandate an evidentiary hearing only when the district court is aware of some credible supporting evidence, other than the claimant's allegations, at the time the district court rules on the motion. In the present case, the supporting evidence on which appellant relies was not presented to the district court until after this claim was decided. Without some extenuating circumstance or reasonable excuse for failure to present the evidence in a timely manner, the district court below was not required to vacate its earlier decision and grant an evidentiary hearing.

Appellant's second claim of error is that the district court improperly refused to grant him an out-of-time appeal on the grounds that his attorney rendered ineffective assistance of counsel by failing to file a direct appeal. In numerous cases we have held that an attorney's total failure to file an appeal after being instructed to do so will always entitle the defendant to an out-of-time...