462 F2d 1093 Fryer v. C Macdougall

462 F.2d 1093

Moses Bruno FRYER, Petitioner-Appellant,
v.
Ellis C. MacDOUGALL, Director, Dept. of Corrections, State
of Georgia, Respondent-Appellee.

No. 72-2433.

United States Court of Appeals,

Fifth Circuit.

July 12, 1972.

Moses Bruno Fryer, pro se.

Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for respondent-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

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1

Moses Bruno Fryer has applied to this Court for a certificate of probable cause1 and leave to appeal in forma pauperis2 from the district court's denial of his petition for federal habeas corpus. Because of the confused state of the record in this case, we are unable to make an informed decision on Fryer's application. Accordingly, we grant certificate of probable cause and leave to appeal in forma pauperis, and summarily vacate the district court's judgment, remanding the cause for further proceedings.

2

The applicant who is a prisoner of the State of Georgia, has three times filed petitions for federal habeas relief in the district court. The first was dismissed for failure to exhaust state remedies; the second was dismissed on the merits, without calling for a response or conducting a hearing. The third habeas petition was also summarily denied.

3

In each of these petitions, the applicant has attempted to relate the facts upon which he bases his contentions that his conviction for burglary is invalid. His pleadings, however, appear unintelligible. Liberally construing Fryer's pro se habeas petitions we find his pleadings, though rather incoherent, do indicate that he may be entitled to relief. Because he appears unable to articulate his contentions in an understandable manner, we believe that justice requires that the cause be remanded to the district court with instructions to allow the applicant leave to amend his petition with the aid of appointed counsel. See Montgomery v. Caldwell, 5th Cir. 1972, 457 F.2d 767.

4

Therefore, the applicant's motions for certificate of probable cause and leave to appeal in forma pauperis are granted. The judgment denying habeas corpus relief is vacated, and the cause remanded.3

1

28 U.S.C. Sec. 2253; Rule 22(b), F.R.A.P

2

28 U.S.C. Sec. 1915

3

In view of this Court's summary action, Fryer's motion for appointment of counsel on appeal is denied