350 F2d 951 Vaughn v. A Cox

350 F.2d 951

H. Marvin VAUGHN, Appellant,
v.
Harold A. COX, Warden, New Mexico State Penitentiary, Appellee.

No. 8275.

United States Court of Appeals Tenth Circuit.

September 30, 1965.

Sidney H. Tellis, Denver, Colo., for appellant.

L. D. Harris, Sp. Asst. Atty. Gen. (Boston E. Witt, Atty. Gen., on the brief), for appellee.

Before PHILLIPS, BREITENSTEIN and HILL, United States Circuit Judges.

PER CURIAM.

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1

By this habeas corpus proceeding, a state prisoner attacks the validity of his present confinement in the New Mexico State Penitentiary on several grounds. Relief was denied by the trial court and this appeal followed. At the outset of our consideration of the case, we must first be able to ascertain from the record which of four separate sentences imposed upon appellant he is now serving. This we are unable to do because there is no finding by the trial court on this important matter, nor is there any evidence in the record from which we can ascertain such fact.

2

The case is therefore remanded to the trial court with directions to vacate the order of dismissal, reopen the case for the taking of additional evidence to determine the wording of the four commitments involved, the journal entries of judgment, the docket entries made in each case, the pertinent records of the institution of confinement to show the time served on each of the four commitments and the good time allowance given to appellant.

3

The trial court is also directed to take any other additional competent evidence offered by either the petitioner or the respondent and to make findings of fact and conclusions of law as provided for by Rule 52, F.R.Civ.P.