Calvin Walters, Petitioner-appellant, v. Arnold R. Jago, Supt., Respondent-appellee, 642 F.2d 194 (6th Cir. 1981)

Petitioner Walters appeals from the denial of his habeas corpus petition attacking his conviction and sentence to life imprisonment in Ohio. The basic contention in this appeal, as apparently was true at the proceeding before the District Court, is that a photographic mock-up from which the eyewitness to the burglary identified the petitioner as a party to the crime was "impermissibly suggestive" under the standards set forth in Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972). See also Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968).

In this court's consideration of this case, our primary problem concerns the fact that the District Court did not have the disputed mock-up presented to it. While it would normally be the responsibility of appellant's counsel to see that this evidence was made available to the federal District Judge, it appears that appellant was not represented by counsel in the District Court habeas proceeding. The District Judge pointed to this issue as "the most substantial issue of the claims by this petition." Under these circumstances, we think it is appropriate for us to remand this case to the District Court for appointment of counsel to present evidence on this one issue.

The judgment of the District Court is vacated and the case is herewith remanded to the District Court for further proceedings in accordance with this opinion.