Caver v. State of Ala., 74--3232

• Decision Date: 10 April 1975
• Docket Number: No. 74--3232,74--3232
• Citation: 511 F.2d 124
• Parties: James T. CAVER, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 124

511 F.2d 124

James T. CAVER, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

No. 74--3232.

United States Court of Appeals, Fifth Circuit.

April 10, 1975.

Richard H. Gill, Montgomery, Ala. (Court-appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., Charles N. Parnell, III, Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.

PER CURIAM:

In this habeas corpus proceeding the federal trial court resolved contested issues of fact, which control the disposition of the constitutional questions raised, without a hearing and without having before it a copy of the state court trial record or other reliable and adequate written indicia to permit a proper determination of the merits of such disputed issues. The order denying the application for habeas corpus relief must be vacated and the cause remanded for compliance with the mandate of 28 U.S.C. § 2254(d).

James Caver is now imprisoned pursuant to a conviction of second degree murder from Calhoun County, Alabama on February 17, 1969. He took no direct appeal, but on October 13, 1971 Caver applied to the convicting court for a Writ of Error Coram Nobis. After hearing, that writ was denied on procedural grounds. This denial was affirmed on appeal. Still later, Caver sought federal habeas corpus relief in the instant proceedings by a petition that raised two questions: (1) whether his arrest for vagrancy was pretextural, so as to make evidence subsequently obtained through a stationhouse voice identification procedure illegal and inadmissible; (2) whether he was subjected to a counselless line-up which was unnecessarily suggestive and led to irreparable misidentification. In response to the usual show cause order, the State of Alabama denied the factual basis for Caver's claims. The matter was referred to the U.S. Magistrate, who directed the state to file an additional response consisting of, 'at a minimum', a copy of the transcript of the coram nobis proceedings, and a copy of the transcript on the direct appeal of a jointly tried co-defendant, Jerry White. The state filed the coram nobis transcript but did not file the trial transcript. Caver thereupon moved to strike the state's supplemental filing for failure to include the required trial transcript.

Without comment on the lack of compliance or the motion to strike, the U.S. Magistrate filed a five-page 'recommendation' which dealt in detail with petitioner's arrest, identification, trial, and conviction, and recommended the denial of the writ of habeas corpus 'on the basis of a full, fair and adequate state court record.' On the same day this recommendation was made and filed, the U.S. District Judge denied the petition for habeas corpus relief without prior notice to Caver and without an evidentiary hearing. ¹

An examination of the coram nobis...