458 F2d 397 Benson v. Eyman

458 F.2d 397

Robert BENSON, Petitioner-Appellant,
Frank EYMAN, Warden, Arizona State Prison, Respondent-Appellee.

No. 71-2397.

United States Court of Appeals,
Ninth Circuit.

March 20, 1972.

Robert Benson in pro. per.

Gary K. Nelson, Atty. Gen. of Arizona, Roderic A. Dietz, Phoenix, Ariz., for respondent-appellee.

Before MERRILL, ELY and HUFSTEDLER, Circuit Judges.


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Appellant is currently imprisoned in the Arizona State Prison and seeks, through habeas corpus, to secure his release. His contention is that Arizona prison and parole authorities, in fixing release dates and eligibility for parole, are giving consideration to two Texas convictions which were obtained in violation of his right to counsel.


The record appears to present questions as to whether state remedies in Texas and in Arizona have been exhausted and as to whether prejudicial consideration was or is now being given in Arizona to the Texas convictions.


The District Court denied the writ without hearing upon the ground that Texas court records conclusively establish that appellant's claim that he was without counsel at critical stages of the proceedings was false. This we feel was error. The Texas records do indeed recite at one point that appellant appeared in person and by counsel. The reference does not so clearly encompass all proceedings as to refute conclusively appellant's very positive contentions to the contrary.


As a further ground for denial of writ the District Court noted that petitioner had not shown that any alleged error in the Texas cases had affected his present custody in Arizona. Appellant, however, in a motion for rehearing, attached a copy of a letter from the Arizona Department of Corrections indicating that he had been classified as a multiple offender.


In our view factual issues are presented which require resolution. Further, the issues are of such a nature that in their resolution we feel appellant should have the assistance of counsel.


Reversed and remanded for further proceedings.