*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-30750

Summary Calendar

_____________________

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

EMMET N. BARTHOLOMEW

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court

for the Eastern District of Louisiana 

(94-CA-3729 (84-CR-95))

_________________________________________________________________

September 21, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Proceeding pro se and in forma pauperis, Emmet N.

Bartholomew, an inmate in federal prison, filed a motion pursuant

to 28 U.S.C. § 35(a), seeking to vacate his sentence as illegal

under Rule 11 of the Federal Rules of Criminal Procedure. The

district court treated his motion as one filed under 28 U.S.C. §
2

35(b) and dismissed it as untimely. Because we agree that the

claim lacks merit and must be dismissed, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The procedural history of this case consists of a decadelong series of nearly identical challenges waged by a federal

inmate who pled guilty to felony charges of aggravated armed bank

robbery. Specifically, the inmate repeatedly contested the

sentence imposed by the district judge, which was comprised of a

lengthy term of imprisonment, accompanied by the sentencing

court's strong recommendation against parole.

On March 8, 1984, a federal grand jury issued a two-count

indictment against Appellant Emmet N. Bartholomew, as well as two

co-defendants, charging them with conspiracy to commit, and

commission of bank robbery and incidental crimes in violation of

18 U.S.C. §§ 371, 2113(a)(e) and 2. As alleged in the

indictment, Bartholomew conspired and carried out a bank robbery

scheme during which a bank officer was kidnapped, slashed with a

knife in the throat and chest multiple times, and abandoned to

bleed to death in the trunk of a parked car. Although

Bartholomew was not the individual directly responsible for the

slashing of the victim, he admitted being the instigator of the

robbery, and did take part in the robbery scheme as a whole.

On April 30, 1984, Bartholomew pled guilty to the entire

indictment pursuant to a plea agreement. In exchange for his

plea of guilty to the federal charges, the local Louisiana

District Attorney's Office agreed not to pursue any state charges
 

1 All three of the co-defendants pled guilty to the

charges. One of the co-defendants received a 25-year sentence on

Count II; the other co-defendant was sentenced to life

imprisonment.

3

related to the bank robbery, abduction and bodily harm suffered

by the victim officer, and the United States Attorney's Office

agreed not to charge him with the attempted murder of the victim. 

The plea agreement explicitly exposed Bartholomew to a maximum

punishment of five years incarceration and a $10,000 fine for

Count I, and a potential life sentence for Count II. The

agreement stated that Bartholomew "understands that he has not

been promised anything with regard to the sentence he may

receive."

On June 20, 1984, the district court sentenced Bartholomew

to a five-year term of imprisonment for conspiracy and a

concurrent 30-year term for the bank robbery and kidnapping

offense, and also ordered Bartholomew to pay $8000 in restitution

to the victim.1 The district court stated on the Judgment and

Commitment Order that it recommended "NO PAROLE" and that "[t]his

is a categoric and unchangeable Order."

Bartholomew appealed this Judgment, arguing, first, that the

district court's "Commitment Recommendation" was an ultra vires,

illegal order, and, second, that a district court in general

lacks authority to recommend against parole. We rejected both of

Bartholomew's arguments, holding that the district court's

recommendation was in fact only a recommendation, and that a

district court manifestly has the authority to recommend against
4

a defendant's parole. United States v. Bartholomew, No. 84-3464 

(5th Cir. Jan. 14, 1985), cert. den., 471 U.S. 1081 (1985).

Thereafter, Bartholomew filed a motion to reduce his

sentence pursuant to Federal Rule of Criminal Procedure 35(b). 

In this motion, Bartholomew argued that his sentence should be

reduced from 30 years to 20 to 25 years and that the

recommendation against parole should be withdrawn on the grounds

that justice and equity would be best served if he were not

compelled to spend the entirety of his productive years in

prison. After hearing oral argument on Bartholomew's Rule 35

motion, the district court denied it on January 9, 1986. 

Bartholomew did not appeal this denial.

Then, on March 26, 1986, Bartholomew filed pro se a motion

to vacate, correct or set aside his sentence pursuant to 28

U.S.C. § 2255. In that motion Bartholomew argued, inter alia,

that his sentence should be vacated and all charges dismissed

because he had been prosecuted and convicted in violation of the

Due Process and Equal Protection Clauses of the United States

Constitution. After conferring with his court-appointed attorney

as well as with the Assistant United States Attorney, and

discussing the matter both on and off the record before a United

States Magistrate Judge, Bartholomew agreed to the dismissal of

the motion with prejudice. The stipulation of dismissal did

provide, however, that Bartholomew could refile a future motion

under § 2255, as long as such motion were based upon the limited

grounds of erroneous or incomplete pre-sentence information or
5

upon the existence of additional information unknown to the court

at the time of sentencing, or both.

Thereafter, on August 11, 1986, Bartholomew filed a second §

2255 motion. In this motion, Bartholomew alleged that his

sentence should be vacated for four reasons. First, he

contended, he was under the influence of mind-altering drugs at

the time of the sentencing hearing and was therefore unable to

effectively assist his attorney. Second, Bartholomew argued that

he was sentenced in a manner that discriminated against him on

the basis of his sex. Third, he argued that the district court

failed to comply with Rule 32(c)(3)(d) of the Criminal Rules of

Procedure at his sentencing. Fourth, Bartholomew contended, the

district court sentenced him on the basis of misinformation.

In denying Bartholomew's motion, the district court noted

that Bartholomew offered no explanation for why he had not raised

these issues either on direct appeal of his sentence or in his

subsequent collateral attacks, or, for that matter, why

Bartholomew had failed to appeal the denial of his Rule 35(b)

motion. On those procedural grounds alone, the court admonished,

it could rightfully dismiss Bartholomew's action. Nevertheless,

in a lengthy and comprehensive opinion, the court addressed

Bartholomew's arguments on the merits, a decision it made in

order to "bring th[e] matter to a final conclusion." Bartholomew

v. United States, Civil Action No. 86-3480, (E.D. La. March 10,

1987).
 

2 Boykin v. Alabama, 395 U.S. 238 (1969).

6

Quoting extensively from the transcript of Bartholomew's

Boykin2 hearing and rearraignment on April 30, 1984, the trial

court reminded Bartholomew that all non-jurisdictional errors,

inaccuracies and defects which led to the complaint or the

indictment were cured when he pled guilty to the crime as alleged

in the indictment. Further, the district court noted that it had

been aware of Bartholomew's contentions regarding his culpability

at the time of sentencing, because Bartholomew had submitted to

the Probation Office a statement of his version of the factual

basis of the offense, and that statement had been incorporated

verbatim in the Presentence Report. Quoting from the transcript

of the sentencing hearing, the court also noted that there had

been at the time of sentencing, and there still was, absolutely

no basis for concluding that Bartholomew was not competent to

enter a guilty plea to the offense. The district court held that

there had been no violation of the court's obligation to make

factual findings regarding alleged inaccuracies in the

presentence report because no factual errors were alleged either

at the time of sentencing or on direct appeal. Finally, the

court concluded that, even if any of Bartholomew's arguments were

accepted as correct on their face, Bartholomew still had not

shown that he suffered any prejudice due to the errors. In sum,

the district court concluded that there were more than sufficient

factual and legal grounds for Bartholomew's sentence as it had

been originally imposed. Even though Bartholomew's role in the
7

slashing of the victim bank officer was that of a passive, rather

than active, participant, the law still held him equally culpable

as an accomplice, and, in Bartholomew's personal situation, it

was particularly unsettling that he had failed to intervene on

behalf of the victim, who had been his co-worker and friend. 

Despite the district court's lengthy treatment of the

substantive and procedural bars to Bartholomew's second § 2255

motion, Bartholomew again appealed to this Court, and, after

losing that appeal, he unsuccessfully sought a panel rehearing

and rehearing en banc. United States v. Bartholomew, No. 87-3191

(5th Cir. May 24, 1988) (per curiam).

Thereafter, on February 28, 1989, Bartholomew submitted to

the district court a letter, which the court treated as a motion

for reconsideration of the "no parole" recommendation. On its

own motion, the court set a hearing to reconsider its

recommendation. At the August 23, 1989 hearing, at which

Bartholomew's parents and sister, as well as the victim of the

crime, were present, the district court stated that it still

subscribed to its initial recommendation against parole. The

court also emphasized on the record that its statement was merely

a recommendation and was not binding on the Parole Board.

On August 16, 1989, Bartholomew filed a motion to modify

imposed term of imprisonment pursuant to 18 U.S.C. § 3582(c)(2). 

Because that statutory provision applies only to crimes committed

after November 1, 1987, the district court denied Bartholomew's

motion, and Bartholomew did not appeal the denial.
 

3 The record also suggests that, on March 26, 1993,

Bartholomew filed a "petition to amend pre-sentence report"

pursuant to Rule 32 of the Federal Rules of Civil Procedure,

which the trial court dismissed for want of subject matter

jurisdiction.

8

On April 2, 1992, Bartholomew filed a third § 2255 motion. 

In that motion, Bartholomew reiterated his argument that newly

discovered evidence, such as evidence of alleged perjury by a

government witness, justified a reduction in his sentence. 

Bartholomew also asked the district court to hold a hearing and

to make a finding regarding his "culpability and criminal intent"

in the offense. Finally, Bartholomew suggested that the court,

rather than the Parole Board, was better qualified to determine

Bartholomew's fitness for release. The district court dismissed

Bartholomew's motion with prejudice because he had not

demonstrated cause for failing to previously raise the claim, in

violation of Rule 9(b) of the Rules Governing Section 2255

Actions. Upon his appeal to this Court, we denied Bartholomew's

motion to proceed in forma pauperis on the grounds that he failed

to present a nonfrivolous argument on appeal.3

On January 25, 1994, a panel of the Parole Commission held a

hearing to determine Bartholomew's suitability for parole. In a

four-page memorandum, the panel reviewed and evaluated the

information regarding Bartholomew's offense, including documents

presented by Bartholomew's attorney and statements made by

Bartholomew's mother at the January, 1994 hearing. The Parole

Commission explicitly acknowledged that it was aware of

Bartholomew's version of the facts surrounding the bank robbery,
9

and conceded that "there is no indication that [Bartholomew]

specifically planned the outcome or the violence upon the

victim." Nevertheless, "as the instigator of the offense he must

be held accountable for the eventual outcome," which resulted in

a woman being slashed twice in the throat and chest with such

severity that she lost eight pints of blood and nearly died. The

Commission also noted that parole was denied for one of

Bartholomew's co-defendants, and is not available to the other

co-defendant--the co-defendant who confessed to the actual

slashing of the victim--who was sentenced both to a life sentence

on the federal bank robbery charge and to a 60-year sentence on a

related state charge. Further, the Commission specifically

considered the transcript of the evidentiary hearing held by the

trial court in 1989, in which the court solicited testimony from

Bartholomew, his family, the United States and the victim, and

ultimately decided to maintain its original recommendation of no

parole. Finally, the Commission noted that it was well aware

that the district court's recommendation was not binding on its

decision. Having considered all of the above factors, the Parole

Commission denied Bartholomew parole and recommended that his

sentence continue to expiration.

After having been denied parole, on November 21, 1994,

Bartholomew filed the motion that forms the basis of the instant

appeal. In this "Motion to Vacate Sentence," filed pursuant to

Federal Rule of Criminal Procedure 35(a), Bartholomew argues that

his sentence was illegal for three primary reasons. First,
10

Bartholomew argues, the district court violated Federal Rule of

Criminal Procedure 11(c) by failing to advise him that it would

make a recommendation against parole. Second, he contends that

the district court violated the plea agreement by basing its "no

parole" recommendation on Bartholomew's involvement in a crime

with which he was promised he would not be charged. Finally, in

his motion to amend his Rule 35(a) motion, Bartholomew repeats

his argument that he was sentenced based on incomplete and

incorrect information.

In a judgment entered on January 9, 1994, the district court

denied Bartholomew's motion. First, the court stated that, if

interpreted as a motion under Rule 35(a), Bartholomew's motion

was barred because Bartholomew had already unsuccessfully

challenged the legality of his sentence upon direct appeal. 

Thus, in construing the motion filed pro se with lenience, the

court held that Bartholomew's challenge was properly interpreted

as a Rule 35(b) motion because Bartholomew was in fact requesting

a reduction of his sentence. As a motion under Rule 35(b),

however, Bartholomew's action not only was barred by the law of

the case, since he had already unsuccessfully moved for reduction

of sentence, but it also was untimely, since it was not filed

within the 120-day filing period provided by Rule 35(b). The

court ultimately dismissed the motion as untimely.

Bartholomew timely filed a notice of appeal, as well as a

motion to proceed in forma pauperis on appeal. He then filed a
 

4 Although Bartholomew filed the motion for

reconsideration on December 29, 1994, the judgment dismissing his

Rule 35(a) motion was not entered on the docket until January 9,

1995. When Bartholomew refers to the December 19, 1994 denial of

his motion, he in reality means the December 19 minute entry

denying his motion.

11

motion for reconsideration4 and simultaneously filed a second

notice of appeal. On March 28, 1995, the district court granted

his motion to proceed in forma pauperis, but denied his motion

for reconsideration. On April 13, 1995, Bartholomew filed

another notice of appeal of the order denying his Rule 35(a)

motion as well as the motion for reconsideration.

For the reasons discussed below, we affirm the district

court, and dismiss the case with prejudice.

II. DISCUSSION

Since he was sentenced 10 years ago, Petitioner Emmet N.

Bartholomew, by means of direct appeal, two motions pursuant to

Rule 35 of the Federal Rules of Criminal Procedure, one motion

pursuant to 18 U.S.C. § 3582(c)(2) and three motions pursuant to

18 U.S.C. § 2255, has stated and restated one singular argument:

that he is entitled to parole. Substantively, Bartholomew's

present motion differs only cosmetically from the challenges that

preceded it. The three arguments he makes here -- namely, that

his sentence should be reduced because the district court's

recommendation against parole was illegal, was in violation of

the plea bargain, and was based on erroneous information -- have

already been reviewed and rejected by this Court. These
 

5 We follow our prior decisions as law of the case

without reexamination in subsequent appeals unless "(i) the

evidence on a subsequent trial was substantially different,

(ii) controlling authority has since made a contrary decision of

the law applicable to such issues, or (iii) the decision was

clearly erroneous and would work a manifest injustice." North

Mississippi Communications v. Jones, 951 F.2d 652, 565 (5th

Cir.), cert. denied, 113 S. Ct. 184 (1992). The doctrine extends

to those issues "decided by necessary implication as well as

those decided explicitly." Dickinson v. Auto Center Mfg. Co.,

731 F.2d 1092, 1098 (5th Cir. 1983).

 

6 The offenses for which Bartholomew was convicted

occurred before November 1, 1987. Rule 35, before amendment by

Pub. L. 98-473 on November 1, 1987 provided:

Rule 35. Correction or reduction of sentence.

(a) Correction of sentence. The court may correct an

illegal sentence at any time and may correct a sentence

imposed in an illegal manner within the time provided

herein for the reduction of sentence.

12

arguments, which failed both on direct appeal and in the form of

collateral challenges to his sentence, also provide no recourse

for Bartholomew when presented in the statutory language of

Federal Rule of Criminal Procedure 35(a).

Thus, even though Bartholomew's motion is clearly barred by

the well-established doctrine of law of the case, see Paul v.

United States, 734 F.2d 1064 (5th Cir. 1987),5 we will review

Bartholomew's motion on the merits in a final attempt to bring

this case to conclusion. 

A. Standard of Review

Rule 35(a) of the Federal Rules of Criminal Procedure

provides that a court may correct an "illegal sentence" at any

time, but that a court lacks jurisdiction to "correct a sentence

imposed in an illegal manner" after 120 days have passed since

the entry of the relevant court order.6 Thus, on its face,
(b) Reduction of sentence. A motion to reduce a

sentence may be made, or a court may reduce a sentence

without motion, within 120 days after the sentence is

imposed or probation is revoked, or within 120 days

after receipt by the court of mandate issued upon

affirmance of the judgment or dismissal of the appeal .

. . .

Fed. R. Crim. P. 35(a). 

 

7 We construe the briefs and papers of pro se litigants

more permissively than those filed by counsel. Securities and

Exch. Comm'n v. AMX, Int'l, Inc., 7 F.3d 71, 75 (5th Cir. 1993). 

13

Bartholomew's motion is timely only if it challenges his

sentence's "legality" rather than the legality of the manner in

which the sentence was imposed. If the facts alleged fail to

establish illegality or gross abuse of discretion, the district

court was entitled summarily to deny it. United States v.

Hanyard, 762 F.2d 1126, 1228 (5th Cir. 1985).

In this case, even when reading Bartholomew's 35(a) motion

as broadly as possible,7 it fails on its face to state a claim

under federal law. Although Bartholomew's argument is

discursive, in summary, he contends that his sentence is

"illegal" for three reasons: first, because the district court

violated Rule 11 of the Federal Rules of Criminal Procedure by

failing to advise him that it would recommend against parole

before accepting his guilty plea; second, because the district

court's recommendation against parole violated his plea

agreement; and, third, because it was based on incorrect facts. 

All three contentions lack merit.

B. The District Court Did Not Violate Rule 11
 

8 Bartholomew seems to suggest that he concluded from the

fact that parole was available under the maximum sentence

attached to the charges to which he pled guilty that parole would

therefore be guaranteed. It goes without saying that there is no

basis in law or fact for this belief.

14

Rule 11--the rule governing the acceptance of guilty pleas--

has three "core concerns": the plea must be voluntary, the

accused must understand the nature of the charges against him,

and the accused must be aware of the direct consequences of his

guilty plea. United States v. Stumpf, 900 F.2d 842, 844 (5th

Cir. 1990). Prior to mid-1993, we applied a "per se reversible

error" rule to mistakes involving complete failures to address

one of the core concerns. See United States v. Johnson, 1 F.3d

296, 300-02 (5th Cir. 1993) (en banc). Now, however, in

determining whether a Rule 11 violation has occurred, in all

instances we engage in a two-part "harmless error" analysis: (1)

did the sentencing court in fact vary from the requirements of

Rule 11, and (2) if so, did the variance affect substantial

rights of the defendant? Fed. R. Crim. P. 11(h); Johnson, 1

F.3d at 302. 

In the instant action, Bartholomew--who apparently gained

the mistaken impression from his attorney and from others with

whom he discussed his case8 that he would be granted parole after

serving a fraction of his sentence--argues that the district

court violated Rule 11 because it failed to warn him that it

would recommend against parole, and thereby misled him into

believing that he would be released on parole. This contention,

however, lacks merit because not only did the trial court have no
 

9 This is, of course, assuming that the court's

recommendation regarding parole would have a noticeable impact on

the ultimate decision regarding an inmate's parole, which is not

made by the court, but rather is made by the Parole Commission. 

In this case, as discussed above, the district court repeatedly

emphasized that its recommendation against parole was merely a

recommendation. Further, in ultimately declining to grant

Bartholomew parole, the Parole Commission considered a number of

factors, only one of which was the recommendation made by the

15

obligation under Rule 11 to warn Bartholomew that it would be

recommending against parole, but also none of Bartholomew's

substantial rights were affected by this failure to warn.

First, the case law of our Circuit makes clear that Rule 11

contains no requirement that a sentencing court warn a defendant

that it is going to recommend against parole prior to accepting a

guilty plea. Although Rule 11(c) requires that the district

court inform the defendant of "`the mandatory minimum penalty . .

. and the maximum possible penalty provided by law,' it is wellsettled that the court need not explain `all the consequences

that may flow from conviction or from the imposition of

sentence.'" United States v. Garcia, 636 F.2d 122, 123 (5th Cir.

1981) (quoting United States v. Caston, 615 F.2d 1111, 1114 (5th

Cir. 1980)). In a long line of cases, we have held that Rule 11

does not require a district court to inform a defendant that he

or she would be ineligible for parole. Garcia, 636 F.2d at 123;

Caston, 615 F.2d at 1114; Johnson v. Dees, 581 F.2d 1166 (5th

Cir. 1978); Trujillo v. United States, 377 F.2d 266 (5th Cir.),

cert. denied, 389 U.S. 899 (1967). Having held that a warning of

parole ineligibility is not required, it would betray logic to

hold that a warning of parole unlikelihood9 is required.
district court.

16

Further, the Advisory Committee notes to Rule 11 suggest

that the rule contains no requirement that the court forewarn the

accused of its forthcoming parole recommendation. The notes

state that "[i]t has been suggested that it is desirable to

inform a defendant of additional consequences which might follow

from his plea of guilty." The notes further point out that this

Court has held that advice about eligibility for parole is not

required. Nowhere do the notes imply that a warning regarding

the sentencing court's opinion about parole is necessary; in

fact, every indication in the notes points to the contrary.

Not only would requiring this warning be legally untenable,

it also would be impossible to enforce. Often, if not always,

sentencing judges cannot predict their parole recommendation (as

well as the sentence) because they have not had an opportunity to

review the sentencing materials, such as the Presentence Report. 

The Rules of Criminal Procedure could not possibly have demanded

such clairvoyance on the part of the sentencing court. 

Accordingly, we conclude that there is no merit to Bartholomew's

contention that a sentencing court has a legal obligation

pursuant to Rule 11 of the Federal Rules of Criminal Procedure to

warn a criminal defendant, before accepting his or her plea of

guilty, that the court intends to recommend against parole. 

Finally, the court's failure to warn Bartholomew that it was

going to recommend against parole could not have affected

Bartholomew's substantial rights. Bartholomew admitted on the
17

record--and does not contest now--that he was aware that he was

exposed to a maximum penalty of life sentence pursuant to his

plea of guilty to Count II. Since he knew he could be

potentially sentenced for life, he was warned that he could be

sentenced for 30 years without parole. Therefore, it is clear

from the record that Bartholomew's failure to be forewarned by

the district judge that the court was going to recommend against

parole could not have affected his decision to plead guilty. 

Johnson, 1 F.3d at 303-04; see also United States v. Stumpf, 900

F.2d 842, 844 (5th Cir. 1990) (affirming a sentence where the

district judge had failed to warn the accused that restitution

might be imposed, when the defendant was on notice that he may be

charged a fine).

Since the district court's failure to warn Bartholomew about

its intention to recommend against parole neither violated Rule

11 nor affected Bartholomew's substantial rights, Bartholomew's

Rule 11 argument must be rejected on its merits.

C. The District Court Did Not Violate the Plea Agreement

Bartholomew next contends that his sentence is "illegal"

pursuant to Rule 35(a) of the Federal Rules of Criminal Procedure

because the trial court "breached" the plea agreement. He

maintains that the plea agreement precluded the United States

government, as well as the State of Louisiana, from both

prosecuting him for the attempted murder and also using evidence

related to the attempted murder against him in any manner. Thus,

Bartholomew contends, the sentencing court violated the plea
 

10 Bartholomew also appears to argue that the "government"

violated the plea agreement when it "charged" him with a

"prohibited consideration"--in particular, the nature of

kidnapping and battery associated with the bank robbery--and

therefore denied him parole release. In sum, Bartholomew is

arguing that neither the sentencing court nor the parole

commission are entitled to consider the assault waged on the

victim of the kidnapping in determining the length of his

imprisonment.

18

agreement when it considered the brutal kidnapping and assault in

its decision to recommend against parole.10

On its face, this argument lacks merit. The plea agreement

plainly provides that the maximum sentence to which Bartholomew

was exposed was as long as life imprisonment. The agreement

further states that "the defendant also understands that he has

not been promised anything with regard to the sentence he may

receive." The agreement simply did not contain one reference to

parole, so the court could not possibly have violated it by

exercising its authority--as we have already confirmed--to

recommend against parole.

Moreover, the transcript of the rearraignment colloquy, in

addition to the plea agreement, makes clear that although the

government agreed not to pursue further charges, the agreement

was not binding on the sentencing court. Not only did the

district court carefully explain at the hearing that it was not

bound by the agreement, but also, Bartholomew stated in court

that he did not believe that any other agreements existed

regarding his plea. Finally, the district court repeated

numerous times in court as well as in its written opinions that
 

11 Bartholomew actually only raises this argument in his

motion to amend his motion filed pursuant to Federal Rule of

Criminal Procedure 35(a). Nonetheless, out of an abundance of

caution, and in order to give this pro se litigant the benefit of

all of his arguments, we will briefly discuss this argument as if

it had been raised properly.

19

its recommendation was not binding on the Parole Commission--an

evaluation that we upheld on appeal. 

Accordingly, it is manifestly clear that the district court

did not violate the plea agreement, and Bartholomew's second

35(a) claim is meritless.

D. The Sentence Is Not Illegally Based on Incomplete 

Evidence

Finally, Bartholomew repeats his argument, already raised in

his numerous other filings, that the sentence is invalid because

it was based on an improper determination of his culpability in

the crime.11 Although Bartholomew claims that this issue did not

become ripe until the Parole Commission actually denied him

release on parole, because it was only at that time that the

"practical effects" of the court's recommendation against parole

were actually felt, the record demonstrates otherwise. As

repeated in detail in the procedural history described above,

Bartholomew's disagreements with the court's ability to

recommendation against parole have already been reviewed and

disposed of both by the trial court and by this Court. We cannot

improve upon the lengthy opinion issued by the trial court

disposing of this argument; nor can we disturb the findings made

by the trial court in its hearing to reconsider the

recommendation against parole. 
 

12 As mentioned above, the district court recharacterized

Bartholomew's motion as one filed under Federal Rule of Criminal

Procedure 35(b) and dismissed it as untimely. When recast in

this manner, the motion, as the district court correctly held,

was untimely. United States v. Sarduy, 838 F.2d 1226, 1228 (5th

Cir. 1985). Nonetheless, we need not decide if the district

court erred in its recharacterization of the motion because there

are more than ample grounds to affirm the dismissal under both

subsections of Rule 35. Cf. Stumpf, 900 F.2d at 844.

Further, if we recharacterize Bartholomew's instant motion

as a collateral post-conviction challenge to his sentence

pursuant to 18 U.S.C. § 2255, which may be filed at any time, it

still must be dismissed. A petitioner may not raise an issue

for the first time on collateral review unless he shows both

cause for his procedural default and actual prejudice resulting

20

Accordingly, Bartholomew's final argument raised pursuant to

Federal Rule of Criminal Procedure 35(a) must be rejected on its

merits.

III. CONCLUSION

Bartholomew is not entitled to have the same issue decided

multiple times by the court simply by citing, for purposes of

obtaining federal jurisdiction, a different federal statute or

rule. On that basis alone, this action must be dismissed. As

discussed above, Bartholomew's most recent claim is, for all

practical purposes, no different from those he has already

presented either on direct appeal or by means of collateral

attacks to his sentence pursuant to 18 U.S.C. § 2255--all of

which were soundly rejected by the district court, this Court, or

both. Whether interpreted as a motion pursuant to Rule 35(a),

35(b) or 18 U.S.C. § 2255, Bartholomew has not overcome the

procedural barriers to filing his most recent request for

collateral relief.12
from the error. United States v. Shaid, 937 F.2d 228, 232 (5th

Cir. 1991) (en banc), cert. denied, 112 S. Ct. 978 (1992). If

the error is not of constitutional or jurisdictional magnitude,

the petitioner must show that he could not have raised the error

on direct appeal and that the error would result in a complete

miscarriage of justice if left uncorrected. Id. at 232 n.7. 

And, if a petitioner files multiple motions pursuant to 18 U.S.C.

§ 2255, he or she is required to make similar showings of cause

and prejudice when the particular arguments were not stated in

the first § 2255 motion. One of Bartholomew's previous section

2255 motions was, in fact, dismissed on these grounds. And, once

again, Bartholomew shown neither cause nor prejudice to spare the

case at bar from dismissal. 

21

Thus, for all of the reasons described above, the decision

of the district court is AFFIRMED and Bartholomew's motion is

dismissed with prejudice.

AFFIRMED.