Lloyd Lancaster, Jr. v. Carl Hocker, Warden, Nevada State Prison

448 F.2d 1391

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 4, 1971
• Docket: 26363_1
• Status: Published

Opinion

PER CURIAM:

In denying a petition for writ of ha-beas corpus by a state court prisoner, the district court relied upon detailed findings made by a state court of competent jurisdiction after a hearing on the merits, together with excerpts from a transcript of the state court proceedings contained in petitioner’s briefs, and a transcript of the arraignment proceedings at the trial. The entire transcript of the state court habeas corpus proceedings, however, was not produced by either party 1 .

On the basis of Selz v. State of California, 9 Cir. 1970, 423 F.2d 702, and cases therein cited, we feel compelled to remand for an independent review of the entire transcript of the state evidentiary hearing.

Reversed and remanded for further proceedings.

1 . In denying the petition for a rehearing the district court said that, “The denial of the writ was based on the failure of Petitioner to allege with particularity in what manner the state post-conviction hearing and findings consequent thereto were inadequate” and that it was “apparent that petitioner has a transcript of the state hearing but has failed to produce it as required by 28 U.S.O. § 2254(e) even after being given an opportunity to do so.” There was no order, however, requiring production of the transcript.