James McGee v. C. Murray Henderson, Warden, Louisiana State Penitentiary

514 F.2d 1234, 1975 U.S. App. LEXIS 14134

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 18, 1975
• Docket: 74-4045
• Status: Published

Opinion

514 F.2d 1234

James McGEE, Petitioner-Appellant,
v.
C. Murray HENDERSON, Warden, Louisiana State Penitentiary,
Respondent-Appellee.

No. 74-4045.

United States Court of Appeals,
Fifth Circuit.

June 18, 1975.

Anthony M. DiLeo, New Orleans, La. (Court-appointed), for petitioner-appellant.

William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Barbara B. Rutledge, Asst. Atty. Gen., New Orleans, La., Thompson L. Clarke, Dist. Atty., St. Joseph, La., Charles Brackin, Asst. Dist. Atty., Lake Providence, La., John T. Seale, Asst. Dist. Atty., Tallulah, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, and GEWIN and THORNBERRY, Circuit Judges.

PER CURIAM:

The district court denied the habeas corpus petition of McGee, a state prisoner, without an evidentiary hearing. Giving this pro se application the liberal construction which is required by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it appears that the appellant claims he was denied the right to appeal. Without any intimation as to the merits of the case, it is our conclusion that the judgment of the district court denying the petition should be vacated and the cause remanded for an evidentiary hearing. At the evidentiary hearing, the appellant's proof must meet the standards set forth in Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968) and Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974).

Vacated and remanded.