James B. Johnson, Appellant, v. E. v. Nash, Warden, Missouri State Penitentiary, Appellee, 315 F.2d 632 (8th Cir. 1963)

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U.S. Court of Appeals for the Eighth Circuit - 315 F.2d 632 (8th Cir. 1963) April 17, 1963
Rehearing Denied April 25, 1963

Appeal from the United States District Court for the Western District of Missouri; Floyd R. Gibson, Chief Judge.

John Burruss, Jr., of Hendren & Andrae, Jefferson City, Mo., court appointed counsel for appellant.

Thomas F. Eagleton, Atty. Gen., and Howard L. McFadden, Asst. Atty. Gen., Jefferson City, Mo., filed motion to remand.

Before JOHNSEN, Chief Judge, and MATTHES, Circuit Judge.


Appellant's application to have a certificate of probable cause issued by a judge of this Court to enable him to take an appeal from the District Court's denial of his petition for a writ of habeas corpus has heretofore been granted, and he was thereafter permitted by us to have the appeal docketed and to prosecute it in forma pauperis. We appointed Mr. John E. Burruss, Jr., of Jefferson City, Missouri, as counsel to represent appellant on the appeal, and Mr. Burruss has since filed an able and exhaustive brief in support of appellant's contention that the District Court erred in making denial of the petition without holding a hearing thereon. The Attorney General of Missouri has now filed a motion to have the case remanded to the District Court for such a hearing.

On consideration of the motion, the order of the District Court denying the petition for a writ is hereby vacated, and the cause is remanded to that Court, with directions to grant appellant a hearing on the petition, to appoint counsel to represent him for purposes thereof, and to make appropriate disposition of the matter on the basis of the hearing.

Judgment vacated and cause remanded.