Early Lowe v. State of Alabama

Fifth Circuit

Early Lowe v. State of Alabama

487 F.2d 337, 1973 U.S. App. LEXIS 7049

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 13, 1973

Docket73-3605

StatusPublished

Cited by3 cases

This text of 487 F.2d 337 (Early Lowe v. State of Alabama) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Early Lowe v. State of Alabama, 487 F.2d 337, 1973 U.S. App. LEXIS 7049 (5th Cir. 1973).

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Opinion

PER CURIAM:

Petitioner’s pro se applications for a certificate of probable cause, and for leave to appeal in forma pauperis are granted, and the appeal is docketed.

This state prisoner’s habeas petition alleges a number of constitutional defects in his arrest, indictment, trial and conviction the nature of which are such that examination of the state trial record, examination of the record of the evi-dentiary hearing in petitioner’s state ha-beas action, or an evidentiary hearing in the District Court would be appropriate. See Smith v. Beto, 467 F.2d 1374, 1375 (CA5 1972); Gerzin v. Beto, 459 F.2d 671 (CA5 1972). As best we can determine, however, the District Court did not hold an evidentiary hearing and had before it neither the state trial court record nor the state evidentiary hearing record. If so that court did not conduct the requisite independent inquiry into petitioner’s constitutional claims. See Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

Petitioner’s application for appointment of counsel on appeal is denied.

The order of the District Court denying appellant’s habeas petition is vacated and the case is remanded for further consideration. 1

1

. It is appropriate to dispose of this ease summarily. See Groendyke Transportation, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158.

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PER CURIAM:

Petitioner’s pro se applications for a certificate of probable cause, and for leave to appeal in forma pauperis are granted, and the appeal is docketed.

This state prisoner’s habeas petition alleges a number of constitutional defects in his arrest, indictment, trial and conviction the nature of which are such that examination of the state trial record, examination of the record of the evi-dentiary hearing in petitioner’s state ha-beas action, or an evidentiary hearing in the District Court would be appropriate. See Smith v. Beto, 467 F.2d 1374, 1375 (CA5 1972); Gerzin v. Beto, 459 F.2d 671 (CA5 1972). As best we can determine, however, the District Court did not hold an evidentiary hearing and had before it neither the state trial court record nor the state evidentiary hearing record. If so that court did not conduct the requisite independent inquiry into petitioner’s constitutional claims. See Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

Petitioner’s application for appointment of counsel on appeal is denied.

The order of the District Court denying appellant’s habeas petition is vacated and the case is remanded for further consideration. 1

1

. It is appropriate to dispose of this ease summarily. See Groendyke Transportation, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158.

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487 F.2d 337, 1973 U.S. App. LEXIS 7049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/early-lowe-v-state-of-alabama-ca5-1973.

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