387 F2d 132 Cotner v. J T Willingham
387 F.2d 132
Louis Ashley COTNER, Appellant,
J. T. WILLINGHAM, Warden, United States Penitentiary,
Leavenworth, Kansas, Appellee.
United States Court of Appeals Tenth Circuit.
Dec. 12, 1967.
Preston G. Gaddis, II, Oklahoma City, Okl., for appellant.
James R. Ward, Asst. U.S. Atty., Topeka, Kan., (Newell A. George, U.S. Atty., Topeka, Kan., on the brief) for appellee.
Before HILL and SETH, Circuit Judges, and DOYLE, District Judge.
The appeal is from an order entered, without a hearing, dismissing a petition for a writ of habeas corpus. The dismissal was apparently based solely upon the insufficiency of the allegations of the petition. We do not agree with the trial court.
The petition, prepared by Cotner, was on the form provided by the clerk of the court and, in substance, by questions and answers alleges: That shortly after being released from the Leavenworth Penitentiary as a mandatory releasee petitioner was arrested as a violator on November 7, 1966, and placed in the county jail at Winslow, Arizona, then he was taken to the Prescott County Jail and later to the Federal Detention Center at Florence, Arizona, where he remained until January 27, 1967; on that date he was returned to the Leavenworth institution; on April 27, 1967, the petition for a writ of habeas corpus was filed and at that time petitioner had not been afforded a revocation hearing of any kind although he had been advised on the day of his arrest that he would be given a local hearing and permitted to have a lawyer and to present witnesses. The order of dismissal was entered on May 18, 1967, and still petitioner had not been afforded a hearing but the order recites that '* * * he is promised a hearing in May * * *.'
The Government now suggests that the order of dismissal be set aside and the case remanded for a hearing on the merits and in light of the applicable regulations of the Board of Parole.1 We certainly agree.
The order of dismissal is set aside and the case is remanded for further proceedings. The Government should answer the allegations of the petition; if there are factual issues they will have to be resolved by an evidentiary hearing and the trial judge must make findings of fact and conclusions of law and enter a final order accordingly.
Appellant also has pending a 'Motion For Leave To File Amendment To Petition.' That motion is denied but after remand the same may be presented to the trial court.
28 C.F.R. 2.40 and 2.41