William Essex, Jr. v. M. J. Elliott

Fifth Circuit

William Essex, Jr. v. M. J. Elliott

456 F.2d 1039, 1972 U.S. App. LEXIS 10597

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 21, 1972

Docket72-1091

StatusPublished

Cited by3 cases

This text of 456 F.2d 1039 (William Essex, Jr. v. M. J. Elliott) 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.

Bluebook

William Essex, Jr. v. M. J. Elliott, 456 F.2d 1039, 1972 U.S. App. LEXIS 10597 (5th Cir. 1972).

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Opinion

PER CURIAM:

This is before us on application for appointment of counsel. We need not reach this since the case obviously must be remanded. Without holding an evidentiary hearing and relying solely on the scanty state court record before it, the District Court denied Appellant’s petition for writ of habeas corpus on the ground that he had intentionally bypassed State post-conviction remedies. In the light of that record as well as the Federal Court record, the Court’s failure to hold an evidentiary hearing on this issue is clearly contrary to our recent decisions in Bonaparte v. Smith, 5 Cir., 1971, 448 F.2d 385, and Johnson v. *1040 Smith, 5 Cir., 1971, 449 F.2d 127. See also Calhoun v. Smith, 5 Cir., 1971, 447 F.2d 1356; Fay v. Noia, 1963, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, 869. The case is therefore remanded with directions that the District Court hold an appropriate hearing and make necessary findings on the issue of deliberate by-pass of State remedies, and take such further action as would then be appropriate.

Vacated and remanded.

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PER CURIAM:

This is before us on application for appointment of counsel. We need not reach this since the case obviously must be remanded. Without holding an evidentiary hearing and relying solely on the scanty state court record before it, the District Court denied Appellant’s petition for writ of habeas corpus on the ground that he had intentionally bypassed State post-conviction remedies. In the light of that record as well as the Federal Court record, the Court’s failure to hold an evidentiary hearing on this issue is clearly contrary to our recent decisions in Bonaparte v. Smith, 5 Cir., 1971, 448 F.2d 385, and Johnson v. *1040 Smith, 5 Cir., 1971, 449 F.2d 127. See also Calhoun v. Smith, 5 Cir., 1971, 447 F.2d 1356; Fay v. Noia, 1963, 372 U.S. 391, 439, 83 S.Ct. 822, 849, 9 L.Ed.2d 837, 869. The case is therefore remanded with directions that the District Court hold an appropriate hearing and make necessary findings on the issue of deliberate by-pass of State remedies, and take such further action as would then be appropriate.

Vacated and remanded.

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456 F.2d 1039, 1972 U.S. App. LEXIS 10597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-essex-jr-v-m-j-elliott-ca5-1972.

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