* Chief Judge of the Eastern District of Texas, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–3297.

UNITED STATES of America, Plaintiff–Appellee,

v.

Wayne F. BARTHOLOMEW, Defendant–Appellant.

Oct. 5, 1992.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY and DUHÉ, Circuit Judges, and PARKER * , District Judge.

PER CURIAM:

Wayne F. Bartholomew, an indigent Federal inmate, appearing pro se, filed a Moti on under

28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in Federal custody. The Court

below determined that the record was sufficient for the purpose of adjudication of movant's claims,

and that an evidentiary hearing was not necessary. The Court then dismissed Bartholomew's motion

with prejudice. Bartholomew is before this Court pro se appealing the Judgment and Order of the

District Court dismissing his motion with prejudice without an evidentiary hearing.

FACTS

Appellant and two co-defendants abducted a bank officer and robbed a bank. Appellant cut

and seriously wounded the kidnap vict im, and left her for dead. Appellant, along wit h both

codefendants, pleaded guilty to conspiracy to commit and commission of bank robbery and incidental

crimes, in violation

o f 18 U.S.C. § 371 and § 2113(a), (e). Bartholomew was sentenced to life in

prison, and the Court recommended "no parole." No appeal was taken.

Appellant also faced state charges arising from the same incident. In the state case he raised

the issue of competency, was examined by a doctor and found competent by the Court. His federallawyer was aware of these proceedings, but did not raise the competency issue in Federal Court. At

the Plea hearing she brought to the Co urt 's attention Appellant's past history of mental illness and

drug abuse, but represented to the Court that Appellant was competent to enter a plea.

ISSUES AND STANDARD OF REVIEW

Appellant sets out two specific issues for our review, but argues other related issues under

each one. Instead of following Appellant's format, we will examine the lower Court's ruling on each

issue presented in Appellant's § 2255 Motion, and determine if the Court erred either in denying

Appellant an evidentiary hearing, or in denying the relief requested.

A motion brought under 28 U.S.C. § 2255 can be denied without a hearing only if the

motion, files, and records of the case conclusively show that the prisoner is entitled to no relief. U .S.

v. Auten, 632 F.2d 478 (5th Cir.1980).

The Court reviews the action of the District Court for abuse of discretion. U .S. v. Donohoe,

458 F.2d 237 (10th Cir.1972), cert. denied 409 U.S. 865, 93 S.Ct. 157, 34 L.Ed.2d 113 (1972).

INCOMPETENCY

Bartholomew alleges that he was incompetent due to mental disease at the time he entered

his plea of guilty. In support of his claim he attached exhibits which established that he had been

diagnosed as suffering from schi zo phrenia, paranoid type and drug dependency, and admitted to

Southeast Lo uisiana Ho spital for treatment of this condition in 1973. After two months he was

discharged and c o nt inued outpatient treatment until 1976. He also attached documentation from

Leavenworth Correctional Facility that he had been diagnosed as schizophrenic, paranoid type while

in prison in 1986. The Court in making a determination on Appellant's incompetency claim

considered these documents as well as the transcription of the guilty plea hearing, and the competency

proceeding in the parallel state court proceeding. The Court determined that the evidence on whichAppellant relied, while it may have raised a doubt about his capacity in 1973–1976 was insufficient

to raise a bona fide doubt about his competency immediately prior to and at the time of his plea in

April of 1984.

The Court observed that no medical evidence was before the Court covering the period of

time between 1976 and 1984. Appellant has not alleged to the Court below or in his appellant brief

that there was any evidence other than what was already before the Court that could have cured the

deficiency. Therefore we find no error in the Court's denial of an evidentiary hearing on this issue.

Further we hold that the Court did not abuse its discret io n in co ncluding that Appellant was

competent to plead to the charged offenses and did so with a full understanding of the consequences.

INEFFECTIVE ASSISTANCE OF COUNSEL

The Court co rrectly set out and followed the framework established in S trickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to determine if Appellant had

established a cognizable claim of ineffective assistance of counsel. Bartholomew must demonstrate

(1) that his attorney's conduct fell below an objective standard of reasonable professional assistance

and (2) but fo r co unsel's errors, there is a reasonable probability that the result of the proceeding

would have been different. Appellant listed five reasons for finding his counsel ineffective.

The Court first considered Appellant's alle g ations that his attorney failed to request a

psychiatric examination and failed to investigate and pursue an insanity defense. An examination of

the record revealed that she was aware o f Appellant's medical and drug abuse history, and had

considered pursuing an incompetency defense, but had rejected it as meritless. Appellant does not

allege that she was un aware o f t he psychiatric examination and competency hearing held shortly

before he entered his plea which resulted in a finding in the state companion case that Appellant was

competent. He only expresses his dissatisfaction with what he perceived as a lack of thoroughness

by the doctor who conducted the examination.He next asserts that his lawyer failed to adequately investigate Appellant's claim that he

lacked any intent to commit the crime ch arged. He maintains that he was induced by his

co-defendants to participate in the crime because they led him to believe that the bank robbery was

only a fake. He attached declarations of other inmates who had heard the "fake robbery" story from

Appellant's co-defendant who was then serving his sentence for this crime in a Federal Prison. The

Court determined that Appellant's statement under oath at his plea hearing that the government's

version of the facts was correct, was more credible than his present statements and supporting

declarations. Therefore, his attorney had no duty to investigate a claim that had no viability and that

Appellant essentially repudiated under oath at his plea hearing.

Appellant next included a general claim that his lawyer's advice to plead guilty was based on

insufficient investigation and information. The Court below found that , wit h t he exception of the

claims addressed above, his insuffic ient investigation complaint lacked the necessary specificity to

support a claim of ineffective assistance of counsel.

Finally, Bartholomew alleged that his lawyer failed to comply with Rule 32, Fed.R.Crim.P.,

regarding the requirement that counsel and defendant read and review the presentence investigation

report (PSI) prior to sentencing. We find that this failure, if proven, would have met the first prong

of the Strickland analysis. However, the Court found that the contents of the PSI did not impact the

sentence imposed, which was based solely on the fact ual basis of the crimes as stated by the

government. The Appellant failed to establish that but for this error, the outcome of the proceeding

would have been different.

We find nothing alleged in these claims that required the Court to look outside the record and

documents attached to the motion to make a determination as to the validity of the claims. We find

no ab use o f discretion in the Court's holding that Appellant is entitled to no relief on the basis of

ineffective assistance of counsel.RULE 32 VIOLATION

Appellant's third claim is that the Court breached its duties under Rule 32, Fed.R.Crim.P. by

failing to ascertain that Bartholomew and his lawyer had read the PSI, by failing to allow them to

object to errors in the PSI and by f a iling to make written findings of fact regarding each objection

made. The record of the sentencing hearing makes it clear that Appellant's counsel had read the PSI,

and that the Court afforded ample opportuni ty for comment and objection to both Appellant and his

counsel, and that no objection was made to the PSI. The real issue raised is Appellant's claim that

he did not see the PSI until sometime after the sentencing hearing, at which time he determined that

there were factual errors in the report that his attorney did not discuss with him or object to prior to

sentencing. The allegation that most concerns this Court is that the PSI contains the statement that

Appe llant had previously shot and killed a man. Appellant contends that is not true. There are

questions presented by this issue that would require development at an evidentiary hearing. When

was Appellant first made aware of the allegations in the PSI? Is the statement true?

The Court below found that this Rule 32 violation is not cognizable on collat eral attack

because it could have been raised on direct appeal or in an earlier Rule 35 motion to correct sentence,

citing United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.1989.) The holding in P rince does not

preclude § 2255 relief from a Rule 32 violation. Rather, the Court must make a determination

whether the violation could have been raised on direct appeal or an earlier Rule 35 motion. We find

that the record before the Court did not conclusively show the issue could have been raised on appeal

or previous motion. Bartholomew alleges (1) his co unsel failed to comply with her obligation to

review the PSI with him, (2) the Court failed to comply with its obligation to ascertain that he had

been provided a copy of the report, (3) the report was finally obtained on some unknown date by a

pro se inmate through an open records act request, and ( 4) for some peri od of ti m e between

conviction and the filing of his § 2255 motion, he was under treatment and medication for psychiatric

disorder. Rule 32 requirements that insure a defendant is apprised of the contents of a PSI and has

an opportuni ty to object to inaccurate information were designed to protect the integrity of thesentencing procedure. Appellate courts have the power to correct a Rule 32 violations on collateral

attack if the § 2255 Movant can demonstrate that the error could not have been brought to the court's

attention earlier.

The Court below next notes that its sentence was based solely on the government's version

of the facts and not on any information in the PSI, so that failure to correct it would not result in a

miscarriage of justice. Although, under these facts Appellant may not be entitled to a new sentence,

he is entitled to have inaccuracies in his PSI corrected, as the information in the PSI impacts choice

of facility, parole eligibility and relationships to various social service agencies on his release.

"NO PAROLE" RECOMMENDATION

On the standardized "Judgment and Probation/Commitment Order," in the space designated

"Commitment Recommendation," the following notati on appears: "NO PAROLE. This is a categoric

and unchangeable Order." Appellant co nt ends that this language constitutes an order imposing a

sentence of life without parole, which is not available under the statute. In an unpublished opinion,

this Court rejected a similar claim made by one of Appellant's co-defendants. U nited States v. Emmet

N. Bartholomew

, 752 F.2d 644 (5th Cir.1985) (unpublished opinion). On reading the Judgment and

Probation/C o mmit ment Order, it is clear that the Court below is making a recommendation of no

parole. The sentence of commitment is for life, as allowed under the statute. We find no error in the

denial of a hearing on this issue. We find no abuse of discretion in the lower Court's finding that the

sentence imposed is not illegal.

CONCLUSION

The case is REMANDED with instr uct ions to correct any inaccuracies in the PSI. The

judgment is AFFIRMED in all other respects.