459 F2d 671 Gerzin v. J Beto

459 F.2d 671

Richard GERZIN, Petitioner-Appellant,
v.
Dr. George J. BETO, Respondent-Appellee.

No. 72-1240 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

April 13, 1972.

Richard Gerzin, pro se.

Crawford C. Martin, Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Dunklin Sullivan, Asst. Attys. Gen., Austin, Tex. for respondent-appellee.

Before BELL, DYER, and CLARK, Circuit Judges.

PER CURIAM:

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1

This appeal is taken from an order of the district court denying the habeas petition of a Texas state prisoner. We vacate and remand.

2

The habeas corpus petition filed by appellant presented matters which could only be determined from the record of the state trial, or failing that, after an evidentiary hearing in the district court. The petition was denied by the district court, on the recommendation of a magistrate, without an evidentiary hearing and without the benefit of the record of the state proceedings.

3

The judgment is therefore vacated and the cause remanded to enable the district court to view the state records and, if necessary, hold an evidentiary hearing to evaluate the appellant's allegations. Brooks v. Smith, 5 Cir., 1970, 429 F.2d 1281; Hollingshead v. Wainwright, 5 Cir., 1970, 423 F.2d 1059.

4

Vacated and remanded.

*

Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al. 5 Cir., 1970, 431 F.2d 409, Part I