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James Harvey HENDRON, Petitioner-Appellant, v. Henry COWAN, Superintendent, Kentucky State Penitentiary, Respondent-Appellee.

No. 77-1015.

United States Court of Appeals, Sixth Circuit.

Argued June 9, 1977.

Decided July 14, 1977.

Rehearing Denied Oct. 5, 1977.

Timothy T. Riddell, Frankfort, Ky., for petitioner-appellant.

Robert F. Stephens, Atty. Gen. of Kentucky, George M. Geoghegan III, Frankfort, Ky., for respondent-appellee.

Before EDWARDS, LIVELY and EN-GEL, Circuit Judges.

PER CURIAM.

Petitioner in this case appeals from dismissal without hearing of his petition for writ of habeas corpus. He had been convicted for housebreaking in a Kentucky State Court and sentenced to ten years imprisonment.

*576Before this court he claims that his federal due process rights were violated at his trial when the State deliberately introduced evidence that a co-indictee who had already been tried and found guilty of the same offenses for which he was charged was required to disclose his conviction before the jury which was trying appellant. While we note that the District Court, on recommendation of the Magistrate, denied the petition, holding that the admission of this evidence was a discretionary ruling by the trial judge which did not reach constitutional proportions, the recommendation of the Magistrate which was affirmed by the District Court appears also to have been based on the contention that in any event, it was harmless error. Since there was no evidentiary hearing before the District Court, and since the State conceded that the trial court record had never been reviewed by either the Magistrate or the District Court, we feel constrained to remand this case for reconsideration of the due process issue (upon which we believe appellant’s state court remedies were exhausted) by means of review of the State Court record or the conducting of an evidentiary hearing.

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