440 F2d 1075 Oakes v. T Howard

440 F.2d 1075

Thomas Walker OAKES, Petitioner-Appellant,
James T. HOWARD, Superintendent, Kentucky State Reformatory, Respondent-Appellee.

No. 20667.

United States Court of Appeals, Sixth Circuit.

March 23, 1971.

Whayne C. Priest, Jr., Bowling Green, Ky., Court Appointed, for appellant on brief.

John B. Breckinridge, Atty. Gen., M. Curran Clem., Asst. Atty. Gen., Frankfort, Ky., for appellee on brief.

Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.


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The District Court Judge who heard and denied petitioner's petition for writ of habeas corpus in this case did so without an evidentiary hearing. While it is obvious that most of petitioner's allegations are of such a conclusory nature and so lacking in specificity as to warrant this disposition, at least one of petitioner's allegations is difficult to resolve without an evidentiary record.


Petitioner complains that one of the members of the jury which convicted him of the offense which resulted in his current sentence was the wife of someone whom he had been previously convicted of robbing. The State appears to assume that this was true, but seems to assert that under no circumstances could this represent a federal constitutional violation.


The federal right to a jury trial, however, is a right to a trial "by an impartial jury." Parker v. Gladden, 385 U.S. 363-364, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); Turner v. Louisiana, 379 U.S. 466, 471, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965).


Although we recognize this issue was raised only by the sworn affidavits which petitioner attached to his petition, it has been briefed on appeal by the Commonwealth as an appellate issue and we consider it properly before this court.


Reversed and remanded for evidentiary hearing.