Van R. Paige, Appellant, v. Major Fred R. Ross, Appellee, 372 F.2d 426 (4th Cir. 1967)

This appeal from an order denying a writ of habeas corpus without a hearing presents a contention that the appellant was denied an equal protection right under the Fourteenth Amendment when the state trial court refused or neglected to appoint a lawyer to prosecute an appeal for him. The Attorney General for North Carolina in this Court now concedes that the records in the state post-conviction hearing do not answer the factual question whether or not there was any such denial of counsel as alleged by the prisoner. Our own examination of the record confirms us in that view.

Under the circumstances, dismissal of the habeas corpus petition without a plenary hearing and a factual determination of the deprivation of counsel claim was improper. The case is remanded with instructions to hold such a plenary hearing and, if it be found that there was such a deprivation of counsel as claimed by the prisoner, to issue a writ of habeas corpus unless the State of North Carolina within a reasonable time shall allow a belated appeal from the original judgment of conviction in which the assistance of counsel would be afforded the prisoner or unless it elects to retry him.

Reversed and remanded.