Opinion
No. 17005.
December 12, 1957.
James D. McGovern, Jr., New Orleans, La., for appellant.
M.E. Culligan, Asst. Atty. Gen. of Louisiana, Jack P.F. Gremillion, Atty. Gen. of Louisiana, for appellee.
Before RIVES, BROWN and WISDOM, Circuit Judges.
This matter coming on for hearing is submitted upon oral argument for the appellant and for the appellee on the motion for stay of execution pending appeal for such further orders as to the Court may seem proper. The Court has examined also the original record furnished by the Clerk of the District Court. It appears from the record that upon the filing of the petition for writ of habeas corpus the District Court allowed the petitioner to proceed in forma pauperis and granted a show cause order. Thereafter, upon an oral hearing and without any written response to the show cause order the District Court denied further stay of execution and dismissed the proceeding. The District Court then allowed an appeal in forma pauperis and certified that probable cause existed for such appeal.
For that appeal to be effective it is obvious that it would be necessary to stay execution of the appellant pending the appeal. Fouquette v. Bernard, 9 Cir., 1952, 198 F.2d 96; United States ex rel. De Vita v. McCorkle, 3 Cir., 1954, 214 F.2d 823.
It further appears, however, that there is no necessity for a delay in the consideration of said appeal for the reason that the record shows no response to the show cause order and no hearing upon that response and hence the order of dismissal of the petition for habeas corpus cannot be sustained under the recent decision of this Court in United States ex rel. Goldsby v. Harpole, 5 Cir., 249 F.2d 417.
It Is, therefore, Considered, Ordered and Adjudged by the Court that execution of the appellant be stayed until the proceedings on remand herein ordered have been had. It Is Further Ordered and Adjudged that the Judgment of the District Court dismissing the petition for habeas corpus be vacated and the cause remanded for the filing of a proper response to the show cause order and a hearing upon the issues presented by the petition and such response and such further orders and judgments of the District Court as may then appear proper.