Opinion
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
October 12, 1971.
Johnnie L. Tillis, pro se.
Anthony J.P. Farris, U.S. Atty., Carl Walker, Jr., James R. Gough, Asst. U.S. Attys., Houston, Tex., for respondent-appellee.
Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
The sole contention in this 2255 proceeding was that the trial judge in effect promised the movant probation if he would plead guilty. This is refuted by the transcript of the proceedings in open court, by the "court's own recollection" as stated in the trial judge's order, and by affidavits of the movant's former counsel and of the U.S. Attorney. While we have held, Powers v. United States, 5 Cir. 1971, 446 F.2d 22; Martin v. United States, 5 Cir. 1971, 447 F.2d 985 that controverted issues of fact in Section 2255 proceedings may not be adjudicated on the basis of affidavits, this case contains no bona fide controverted issues, and the trial court was not required in these circumstances to hold an evidentiary hearing. See Streator v. United States, 5 Cir. 1968, 395 F.2d 661. The propriety of admitting the former counsel's affidavit as an exception to the attorney-client privilege is governed by our en banc decision in Woodall v. United States, 5 Cir. 1971, 438 F.2d 1317.
See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966.