486 F2d 1050 Fuller v. L Wainwright

486 F.2d 1050

Eddie FULLER, Petitioner-Appellant,
Louie L. WAINWRIGHT, Director, Division of Corrections,
State of Florida, Respondent-Appellee.

No. 73-2384 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Nov. 20, 1973.

Eddie Fuller, pro se.

William W. Herring, Asst. Atty. Gen., Frank B. Kessler, West Palm Beach, Fla., for respondent-appellee.

Before BELL, GODBOLD and GEE, Circuit Judges.


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Petitioner's habeas petition alleges constitutional defects the existence of which can only be adequately determined by examination of the state trial record, or should that prove fruitless, after an evidentiary hearing in the District Court. See Gerzin v. Beto, 459 F.2d 671 (CA5 1972). As we construe the order denying the petition-although we are not entirely free from doubt-it appears that the District Court did not have the record for examination and did not conduct an evidentiary hearing.1


Vacated and remanded.


Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409


If our construction is wrong, the case can be returned to us without the necessity of redocketing, with a copy of the state court record made a part of the appellate record