394 F2d 615 Berlanga v. United States

394 F.2d 615

Daniel S. BERLANGA Appellant,
UNITED STATES of America, Appellee.

No. 25668.

United States Court of Appeals Fifth Circuit.

May 9, 1968.

Daniel S. Berlanga, pro se.

Ralph H. Harris, III, Asst. U.S. Atty., San Antonio, Tex., Ernest Morgan, U.S. Atty., for appellee.

Before TUTTLE and SIMPSON, Circuit Judges, and BREWSTER, District judge.


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The appellant's motion under 28 U.S.C. 2255 makes a two point attack upon the validity of his conviction upon his plea of guilty to each of four counts charging him with narcotics violations under 21 U.S.C. 174 and 26 U.S.C. 4705(a): (1) the trial judge failed to comply with the provisions of Rule 11, F.R.Crim.P.; and (2) the appellant had been led to believe that he would receive the minimum sentence, whereas he received a sentence of twelve years.


The trial court correctly rejected the first claim on the ground that it was conclusively refuted by the files and records in the case. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Smith v. United States, 5 Cir., 265 F.2d 14 (1959); Helpman v. United States, 5 Cir., 373 F.2d 401 (1967); Pursley v. United States, 5 Cir., 391 F.2d 224 (1968) (decided March 12, 1968); Riggins v. United States, D.C.Tex.,255 F.Supp. 777 (1966), and cases therein cited.


There is no merit in the second contention because there is nothing in the record to indicate that the appellant's belief was induced by conduct of any employee of the government or by any person connected with the prosecution. Moore v. United States, D.C.Tex., 236 F.Supp. 621, affirmed, 5 Cir., 334 F.2d 25 (1964).