Richard Gerzin v. Dr. George J. Beto

459 F.2d 671, 1972 U.S. App. LEXIS 10088

Opinion

PER CURIAM:

This appeal is taken from an order of the district court denying the habeas petition of a Texas state prisoner. We vacate and remand.

The habeas corpus petition filed by appellant presented matters which could only be determined from the record of the state trial, or failing that, after an evidentiary hearing in the district court. The petition was denied by the district court, on the recommendation of a magistrate, without an evidentiary hearing and without the benefit of the record of the state proceedings.

The judgment is therefore vacated and the cause remanded to enable the district court to view the state records and, if necessary, hold an evidentiary hearing to evaluate the appellant’s allegations. Brooks v. Smith, 5 Cir., 1970, 429 F.2d 1281; Hollingshead v. Wainwright, 5 Cir., 1970, 423 F.2d 1059.

Vacated and remanded.