331 F2d 150 Peppers v. R P Balkcom
331 F.2d 150
Herman Edward PEPPERS, Appellant,
R. P. BALKCOM, Jr., Warden Georgia State Prison, Appellee.
United States Court of Appeals Fifth Circuit.
April 28, 1964.
Ben S. Atkins, Atlanta, Ga., for appellant.
Albert Sidney Johnson, Asst. Atty. Gen., Eugene Cook, Atty. Gen., Atlanta, Ga., for appellee.
Before TUTTLE, Chief Judge, and POPE* and BROWN, Circuit Judges.
The brief of the Appellee Warden does not seriously deny the incorrectness of the District Judge's conclusion that there was a failure to exhaust state remedies, 28 U.S.C.A. § 2254, and therefore the petition for habeas corpus should be dismissed without a plenary hearing. The petition otherwise sets forth adequately the claim that on his state court trial for murder, petitioner was denied effective assistance of counsel. This seems to have been recognized by the District Court in its allowance of the appeal in forma pauperis and the stay of execution pending appeal. We treat this as also the equivalent of a certificate of probable cause. 28 U.S.C.A. § 2253. The District Court by appropriate proceedings was therefore required to determine the merits of this constitutional claim. Accordingly, the case is reversed and remanded to the District Court for an appropriate hearing in light of controlling principles. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837.
Reversed and remanded.
Of the Ninth Circuit, sitting by designation