446 F2d 900 Dyer v. E Wilson

446 F.2d 900

Joseph L. DYER, Appellant,
v.
Lawrence E. WILSON, Warden, Appellee.

No. 24836.

United States Court of Appeals, Ninth Circuit.

July 21, 1971.

Carl J. Weber (argued), Orinda, Cal., for appellant.

Robert R. Granucci, Deputy Atty. Gen. (argued), Evelle J. Younger, Cal. Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., San Francisco, Cal., for appellee.

Before MERRILL, CARTER and CHOY, Circuit Judges.

PER CURIAM:

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1

Appellant, a California state prisoner, appeals from an order of the district court denying his petition for writ of habeas corpus.

2

Petitioner challenged his convictions of robbery, rape and kidnapping on constitutional grounds. The district court concluded that the petitioner's allegations were without merit and invoked the presumption of the correctness of state court findings. There is nothing in the record now before us which indicates the district court made an independent review of the record of the state hearing before relying upon the state court findings. It appears that the reporter's transcript of the state court trial was not even filed or lodged with the district court.

3

We have held that a federal district court may rely upon state court findings under 28 U.S.C. § 2254(d) in a petition by a state court prisoner for habeas corpus only after an independent review has been made of the transcript of the state hearing. Selz v. California, 423 F.2d 702, 703 (9th Cir. 1970), and other cases.

4

Reversed and remanded.