Jesse Ray Maxwell v. Frank A. Eyman, Warden, Arizona State Prison ( 1970 )

PER CURIAM.

This appeal is one of many in which a district court has summarily denied habeas relief to an applicant on the basis of the factual conclusions appearing in a state appellate court’s opinion affirming the petitioner's conviction on a criminal charge.

Such short-cutting is impermissible. The proper procedure to follow, in instances where the application contains allegations of substance, has been frequently outlined by this court — see for example Wright v. Dickson, 336 F.2d 878 (9th Cir. 1964). And we should perhaps emphasize that a district court may not dispense with an evidentiary hearing unless satisfied from an inspection of the record in a state court proceeding that the “state court trier of fact has * * * reliably found the relevant facts. Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963). A state appellate court’s opinion containing mere recitals of ultimate factual conclusions does not suffice. 28 U.S.C. 2254 (d). U. S. ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S.Ct. 321, 3 L.Ed.2d 296 (1959); Piche v. Rhay, 9 Cir., 422 F.2d 1309 (1970).

The judgment is vacated and the matter is remanded for further proceedings.