Jimmy L. Davis, Petitioner-appellant, v. George A. Kropp, Warden, State Prison of Southern Michigan, Respondent-appellee, 339 F.2d 845 (6th Cir. 1965)

Appellant Jimmy L. Davis was convicted for unarmed robbery in the Recorder's Court for the City of Detroit. His application for leave to file a delayed motion for a new trial was denied and the Supreme Court of Michigan refused leave to appeal. The United States Supreme Court denied certiorari, 371 U.S. 942, 83 S. Ct. 324, 9 L. Ed. 2d 276. A petition for a writ of habeas corpus was then filed in the United States District Court for the Eastern District of Michigan, Southern Division, and was dismissed without a hearing. Appellant's application for a certificate of probable cause was also denied as was a similar application made to a member of this Court. However, appellant made a further application to The Honorable Potter Stewart, Associate Justice of the United States Supreme Court, and a response was filed by the Attorney General of Michigan. The certificate was granted and it recited that appellant's application for a writ of habeas corpus had been denied "without hearing and without examination of the trial transcript" and cited Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963).

The principal constitutional error alleged and relied upon by the appellant is that the State Court permitted a confession to be used at the trial which had been obtained by coercion during 55 hours of illegal detention. This is a fact which, if true, would be a deprivation of appellant's constitutional rights and entitle him to relief. Townsend v. Sain, supra; Reck v. Pate, 367 U.S. 433, 81 S. Ct. 1541, 6 L. Ed. 2d 948 (1961); Blackburn v. Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960). This claim is controverted in the opinion and order of the trial judge denying appellant's application for leave to file a delayed motion for a new trial and for a writ of habeas corpus by the statement that the appellant "made no confession" at his trial. Appellant insists, however, that the trial transcript will support the fact that a coerced confession was introduced in evidence.

Under these circumstances, it would appear to be the better practice to examine the transcript if one is available to determine whether a confession was introduced in evidence. In the event a transcript is not available it may be necessary to have a hearing. See Townsend v. Sain, supra; Chessman v. Teets, 350 U.S. 3, 76 S. Ct. 34, 100 L. Ed. 4 (1955); Downey v. United States, 67 App.D.C. 192, 91 F.2d 223 (1937).

The order appealed from is vacated and this cause is remanded for proceedings consistent with this opinion.