Savant v. Henderson , 319 F. Supp. 984 ( 1970 )

NAUMAN S. SCOTT, District Judge.

Johnny E. Savant, after exhausting all State remedies, filed an application of habeas corpus with this Court on November 3, 1970. Petitioner is presently incarcerated in the Louisiana State Penitentiary as the result of a nine year sentence imposed on November 13, 1964, said sentence being based on conviction of simple burglary. Petitioner alleges that he was represented by counsel, gave timely notice of appeal, but was denied the right to appeal due to the absence from the record of the evidentiary material necessary to such right.

The record presented in this habeas corpus proceeding does not contain sufficient implements with which we or the State Courts can carve out the circumstances surrounding these allegations. Therefore, it is imperative that an evidentiary hearing be held to ascertain the veracity of these allegations, preferably by the State District Judge who accepted his plea and imposed sentence. See Cline v. Beto, 418 F.2d 549 (5th Cir. 1969).

“It is for the United States District Court to determine whether it should proceed to conduct the hearing itself or allow the state to conduct its own hearing and enter appropriate findings. A state hearing procedure in no way divests the district court of its full jurisdiction. The district court may well determine that affording the state the opportunity to exercise its initial, if not primary, right and responsibility has great merit in the administration of law, while, at the same time, reserving to the district court its ‘inescapably independent judgment on federal issues’. Boyer v. City of Orlando, 402 F.2d 966, 968 (5th Cir. 1969).” Cline v. Beto, supra, at 551.

It is ordered, therefore, that copies of the petition filed in this case, its attachments, and this order, be sent to Johnny E. Savant at Louisiana State Penitentiary, Angola, Louisiana, so that he may file another application for a writ of habeas corpus with the State trial court.

It is requested and strongly recommended that the Honorable Thirteenth Judicial District Court, Parish of Evangeline, State of Louisiana, upon receipt of a new petition filed by Savant for a writ of habeas corpus, on the aforesaid grounds, hold an evidentiary hearing to determine the veracity vel non of Savant’s allegations, followed by specific findings of fact, enunciation of applicable constitutional standards in conclusions of law, and appropriate order or judgment based thereon. A qualified attorney, admitted to practice in State Courts, should be appointed to represent petitioner at the hearing.

Jurisdiction of this case is retained by this Court, pending the final outcome of the State Court hearing, and prompt filing of a transcript of the evidentiary hearing, written findings of fact and conclusions of law with this Court.

A hearing should be held within sixty (60) days' from the filing of Savant’s new petition. Notice of its intention to hold such a hearing and otherwise comply with this order should be filed by the State Court with this Court and served by mail upon petitioner within fifteen (15) days following receipt of the new petition there.

It is so ordered.