448 F2d 1391 Lancaster v. Hocker

448 F.2d 1391

Lloyd LANCASTER, Jr., Petitioner-Appellant,
v.
Carl HOCKER, Warden, Nevada State Prison, Respondent-Appellee.

No. 26363.

United States Court of Appeals,
Ninth Circuit.

Oct. 4, 1971.

Lloyd Lancaster, Jr., in pro. per.

Harvey Dickerson, Nevada Atty. Gen., Carson City, Nev., for appellee.

Before MERRILL and ELY, Circuit Judges, and JAMESON, District Judge.*

PER CURIAM:

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1

In denying a petition for writ of habeas corpus by a state court prisoner, the district court relied upon detailed findings made by a state court of competent jurisdiction after a hearing on the merits, together with excerpts from a transcript of the state court proceedings contained in petitioner's briefs, and a transcript of the arraignment proceedings at the trial. The entire transcript of the state court habeas corpus proceedings, however, was not produced by either party1.

2

On the basis of Selz v. State of California, 9 Cir. 1970, 423 F.2d 702, and cases therein cited, we feel compelled to remand for an independent review of the entire transcript of the state evidentiary hearing.

3

Reversed and remanded for further proceedings.

*

Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation

1

In denying the petition for a rehearing the district court said that, "The denial of the writ was based on the failure of Petitioner to allege with particularity in what manner the state post-conviction hearing and findings consequent thereto were inadequate" and that it was "apparent that petitioner has a transcript of the state hearing but has failed to produce it as required by 28 U.S.C. Sec. 2254(e) even after being given an opportunity to do so." There was no order, however, requiring production of the transcript