Robert Lee Barnes v. United States, 579 F.2d 364 (5th Cir. 1978). · Go Syfert
Search
Robert Lee Barnes v. United States, 579 F.2d 364 (5th Cir. 1978). Cases Citing This Book View Copy Cite
G Cite
cited 3× by 2 distinct cases, 2017–2021 · 2 courts · …under section 2255, the movant had the burden of showing that he was entitled to relief. at p. 366 ≈ altered
25 citation events (12 in the last 25 years) across 10 distinct courts.
Strongest positive: Rudolph v. United States (alnd, 2021-07-29)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
1979 2002 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Rudolph v. United States
N.D. Ala. · 2021 · quote attribution · 1 verbatim quote · confidence high
under section 2255, the movant had the burden of showing that he was entitled to relief.
discussed Cited as authority (verbatim quote) Alex Kevin Tavera v. United States
11th Cir. · 2020 · quote attribution · 1 verbatim quote · confidence high
under section 2255, the movant has the burden of showing that he is entitled to relief.
examined Cited as authority (verbatim quote) Jeffrey Bernard Beeman v. United States (2×)
11th Cir. · 2017 · quote attribution · 2 verbatim quotes · confidence high
under section 2255, the movant had the burden of showing that he was entitled to relief.
examined Cited as authority (verbatim quote) Waltz v. Warden Wade Corr
5th Cir. · 2002 · quote attribution · 1 verbatim quote · confidence high
where, from the transcript, the plea-taking procedures are clear and regular on their face, a petitioner asserting the existence of a bargain outside the record and contrary to his own statements under oath bears a heavy burden.
examined Cited as authority (verbatim quote) Bemis v. United States
1st Cir. · 1994 · quote attribution · 1 verbatim quote · confidence high
where, from the transcript, the plea-taking procedures are clear and regular on their face, a petitioner asserting the existence of a bargain outside the record and contrary to his own statements under oath bears a heavy burden.
discussed Cited as authority (rule) United States v. Fred Brooks, III
5th Cir. · 2020 · confidence medium
While this “is not an absolute bar to his contentions here, . . . it imposes upon him a ‘heavy burden.’” United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (quoting Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978)).
discussed Cited as authority (rule) Raymon Glenn Overdear v. United States
11th Cir. · 2006 · confidence medium
When reviewing a district court’s denial of a § 2255 motion, we review questions of law de novo and findings of fact only for clear error, Varela v. United States, 400 F.3d 864 , 867 n. 3 (11th Cir.2005), keeping in mind that the movant has the burden of establishing that he is entitled to relief under § 2255, Barnes v. United States, 579 F.2d 364, 365 (5th Cir.1978).
discussed Cited as authority (rule) United States v. Samuel L. Eakman, Jr.
3rd Cir. · 2004 · confidence medium
Section 2255 is clear in its directive that the sentencing court must grant a prompt hearing “[ujnless the motion and files and records of the case conclusively show that the prisoner is not entitled to relief....” To be sure, a prisoner is not entitled to a hearing unless there is some basis in the record to support the prisoner’s contention that the district court relied at least in part on bad information, and at the hearing the prisoner retains the burden to demonstrate that he is entitled to relief (see Barnes v. United States, 579 F.2d 364, 366 (5th Cir.1978); Williams v. United St…
discussed Cited as authority (rule) United States v. Eakman
3rd Cir. · 2004 · confidence medium
Mass. 2003) and Ashkenazi, 246 F. been in place for decades, of placing Supp. 2d at 7)). 10 on bad information, and at the hearing the entitled to no relief,” the statute expressly prisoner retains the burden to demonstrate compels a hearing to determine whether that he is entitled to relief (see Barnes v. the judge in fact relied upon his mistaken United States, 579 F.2d 364, 366 (5th Cir. belief that the Bureau had the discretionary 1978); Williams v. United States, 481 F.2d authority to assign Eakman to a 339, 346 (2d Cir. 1973)).
discussed Cited as authority (rule) Bemis v. United States
1st Cir. · 1994 · confidence medium
See, e.g., Baker v. United States, 781 F.2d 86 , 90 (6th Cir.) (“where Rule 11 procedures were fully adequate, absent extraordinary circumstances, or some explanation of why defendant did not reveal other terms, at least when specifically asked to do so by the court, a defendant’s plea agreement consists of the terms revealed in open court”), cert. denied, 479 U.S. 1017 , 107 S.Ct. 667 , 93 L.Ed.2d 719 (1986); Barnes v. United States, 579 F.2d 364, 366 (5th Cir.1978) (“Where, from the transcript, the plea-taking procedures are clear and regular on their face, a petitioner asserting the…
discussed Cited as authority (rule) United States v. Robert G. Hauring
11th Cir. · 1986 · confidence medium
In addition, the district judge queried Hauring extensively as to whether he understood the nature and consequences of his plea and Hauring responded that he did. “[Wjhere, from the transcript, the plea-taking procedures are clear and regular on their face, a petitioner asserting the existence of a bargain outside the record and contrary to his own statements under oath bears a heavy burden.” Barnes v. United States, 579 F.2d 364, 366 (5th Cir.1978).
discussed Cited as authority (rule) United States v. George S. (Joe) Corbett
5th Cir. · 1984 · confidence medium
See, e.g., United States v. McCord, 618 F.2d 389, 393 (5th Cir.1980) (§ 2255 petitioner alleging unkept plea agreement in contradiction of sworn testimony at Rule 11 proceeding not entitled to evidentiary hearing on uncorroborated allegations; must raise "substantial inference" of broken agreement through affidavits or otherwise); Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978) ("a [§ 2255] petitioner asserting the existence of a bargain outside the record and contrary to his sworn statements under oath bears a heavy burden”). 12 .
discussed Cited as authority (rule) United States v. Frank Ammirato
5th Cir. · 1982 · confidence medium
As this Court stated in Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978), “where, from the transcript, the plea-taking proceedings are clear and regular on their face, a petitioner asserting the existence of a bargain outside the record and contrary to his own statements under oath bears a heavy burden.” See United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980).
cited Cited "see" Sainmelus v. United States
S.D. Fla. · 2020 · signal: see · confidence high
See United States v. Hauring, 790 F.2d 1570, 1571 (11th Cir. 1986) (citing Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978)).2 C.
discussed Cited "see" Melvin Meffery Wade v. Arthur Calderon, Warden of San Quentin Attorney General of California (2×)
9th Cir. · 1994 · signal: see · confidence high
See Barnes v. United States, 579 F.2d 364, 365 (6th Cir.1978). 85 We cannot say that the district court abused its discretion in this case.
cited Cited "see" United States v. Posey
C.D. Cal. · 1987 · signal: accord · confidence high
Villarreal v. United States, 508 F.2d 1132, 1133-34 (9th Cir. 1974); accord Barnes v. United States, 579 F.2d 364, 365 (5th Cir.1978); United States v. Lynch, 132 F.2d 111, 113 (3d Cir.1942).
cited Cited "see" Edward Lee Wright v. United States
5th Cir. · 1980 · signal: see · confidence high
United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980); see Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978).
cited Cited "see, e.g." United States v. Purdy
D. Conn. · 1999 · signal: see also · confidence low
Williams, 481 F.2d at 346 (2d Cir.); see also Barnes v. United States, 579 F.2d 364 (5th Cir.1978).
cited Cited "see, e.g." Joseph Marino v. United States
5th Cir. · 1979 · signal: see, e.g. · confidence low
See, e.g., Barnes v. United States, 5 Cir. 1978, 579 F.2d 364, 366 ; Coon v. United States, 5 Cir. 1971, 441 F.2d 279, 280 , cert. denied, 404 U.S. 860 , 92 S.Ct. 160 , 30 L.Ed.2d 103 .
Retrieving the full opinion text from the archive…
Robert Lee BARNES, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee
78-1484.
Court of Appeals for the Fifth Circuit.
Sep 1, 1978.
579 F.2d 364
1978 U.S. App. LEXIS 9262
Robert Lee Barnes, pro se., William L. Harper, U. S. Atty., Atlanta, Ga., for respondent-appellee.
Morgan, Clark, Tjo-Flat.
Cited by 25 opinions  |  Published
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 Bohan-non, 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 magistrate indi[*366] cates that Barnes’ retained counsel sought the government’s agreement to stipulate that Barnes, if called, would testify to the facts set forth in his pleadings. In fact, it was the government’s attorney, and not Barnes’ retained counsel, who was initially unwilling to allow the hearing to proceed unless Barnes were present to submit to questioning. Under these circumstances, we find no error in Barnes’ absence.

Second, Barnes challenges the adequacy of the hearing because his wife and a friend of his, both of whom Barnes contended had overheard his alleged hallway conversation with Bohannon, were not present as witnesses. At hearing, Barnes’ retained counsel told the magistrate that these witnesses could not be located. Under Section 2255, Barnes had the burden of showing that he was entitled to relief. Coon v. United States, 441 F.2d 279 (5th Cir.), cert. denied, 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103 (1971), and he cannot charge as error his own failure to produce the witnesses necessary to support his motion.

Nothing on the face of the record of the plea-taking proceeding produced pursuant to Rule 11, Fed.R.Crim.P., suggests the existence of the separate bargain alleged by Barnes. Where, from the transcript, the plea-taking proceedings are clear and regular on their face, a petitioner asserting the existence of a bargain outside the record and contrary to his own statements under oath bears a heavy burden. Bryan v. United States, 492 F.2d 775, 780 (5th Cir.) (en banc), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974); cf. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Petitioner has not met that burden in the case at bar. Accordingly the judgment of the district court denying Barnes’ Section 2255 motion to vacate sentence is

AFFIRMED.

1

. At the plea-taking proceedings, both Barnes’ attorney and the prosecutor referred to this latter indictment as a four count indictment. The indictment in the record bearing the same reference number contains only three counts. The colloquy between the attorneys indicates that they were referring to this indictment. Neither party discusses this discrepancy and we cannot see that it has any relevance to this appeal.