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. §
*
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that this opinion should not be published.
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 decade-
long 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
2
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
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
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
4
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).
5
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
2
Boykin v. Alabama, 395 U.S. 238 (1969).
6
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.
7
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,
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
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,
9
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
10
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
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
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,
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
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
(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
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
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
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 well-
settled 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.
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
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
district court.
16
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
17
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
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
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.
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
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
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
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.
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