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    Wendell H. Naillieux v. Sherman H. Crouse, Warden, Kansas State Penitentiary, 356 F.2d 499, 10th Cir. (1966)

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit. The court considered an appeal from a state prisoner whose petition for a writ of habeas corpus was dismissed without a hearing in district court. The appellate court found the district court's dismissal lacking in specificity and remanded the case back to district court with directions to make specific findings and conclusions. In particular, the appellate court noted the district court did not consider potential issues regarding whether the prisoner waived his right to counsel at the preliminary hearing stage since he was represented by counsel at trial.

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    Wendell H. Naillieux v. Sherman H. Crouse, Warden, Kansas State Penitentiary, 356 F.2d 499, 10th Cir. (1966)

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit. The court considered an appeal from a state prisoner whose petition for a writ of habeas corpus was dismissed without a hearing in district court. The appellate court found the district court's dismissal lacking in specificity and remanded the case back to district court with directions to make specific findings and conclusions. In particular, the appellate court noted the district court did not consider potential issues regarding whether the prisoner waived his right to counsel at the preliminary hearing stage since he was represented by counsel at trial.

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    Filed: 1966-02-15 Precedential Status: Precedential Citations: 356 F.2d 499 Docket: 8425

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    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit. The court considered an appeal from a state prisoner whose petition for a writ of habeas corpus was dismissed without a hearing in district court. The appellate court found the district court's dismissal lacking in specificity and remanded the case back to district court with directions to make specific findings and conclusions. In particular, the appellate court noted the district court did not consider potential issues regarding whether the prisoner waived his right to counsel at the preliminary hearing stage since he was represented by counsel at trial.

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    25 views2 pages

    Wendell H. Naillieux v. Sherman H. Crouse, Warden, Kansas State Penitentiary, 356 F.2d 499, 10th Cir. (1966)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case from the United States Court of Appeals for the Tenth Circuit. The court considered an appeal from a state prisoner whose petition for a writ of habeas corpus was dismissed without a hearing in district court. The appellate court found the district court's dismissal lacking in specificity and remanded the case back to district court with directions to make specific findings and conclusions. In particular, the appellate court noted the district court did not consider potential issues regarding whether the prisoner waived his right to counsel at the preliminary hearing stage since he was represented by counsel at trial.

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    of 2

    356 F.

    2d 499

    Wendell H. NAILLIEUX, Appellant,


    v.
    Sherman H. CROUSE, Warden, Kansas State Penitentiary,
    Appellee.
    No. 8425.

    United States Court of Appeals Tenth Circuit.


    Feb. 15, 1966.

    James M. Bruce, Denver, Colo., for appellant.


    Richard H. Seaton, Asst. Atty. Gen. (Robert C. Londerholm, Atty. Gen.,
    of Kansas, on the brief), for appellee.
    Before LEWIS, BREITENSTEIN and HILL, Circuit Judges.
    LEWIS, Circuit Judge.

    This appeal is taken by appellant, a state prisoner, from an order of the District
    Court for the District of Kansas dismissing without prejudice a petition for a
    writ of habeas corpus. The order was entered without a hearing and recites 'that
    petitioner was denied no constitutional right' in the state proceedings and
    further that it 'does not appear that petitioner has ever sought relief under the
    provisions of 60 K.S.A. 1507, and under those circumstances he has not
    exhausted the remedies available to him in the courts of Kansas. * * *'

    We consider the judgment below to be so lacking in specificity as to prevent


    appellate review. Appellant alleges in his petition, among other things, that he
    was denied counsel at his preliminary hearing. Upon appeal, appellee argues
    only that the judgment should be affirmed because under Kansas statutory
    procedures the preliminary hearing was not a critical stage of the proceedings.
    The naked legal question so presented is one reserved by the Supreme Court,
    Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, but
    recently considered by this court under the law of New Mexico. Pearce v. Cox,
    10 Cir., 354 F.2d 884. There is nothing in the present record to indicate that
    consideration of the nature of the Kansas procedures premises the court's order

    of dismissal.
    3

    Appellant, although admitting that he has pursued no remedy under 60 K.S.A.


    1507, argues that it would be futile to seek relief in the Kansas state courts in
    view of the opinion of the Kansas Supreme Court upon appellant's direct
    appeal, State v. Nailieux, 192 Kan. 809, 391 P.2d 140, cert. denied, 379 U.S.
    864, 85 S.Ct. 131, 13 L.Ed.2d 67, and urges that the court erred in dismissing
    the petition for failure to exhaust state remedies. The state makes no counterargument.

    The dismissal of federal habeas corpus for failure to exhaust state remedies is
    rooted in the doctrine of comity, Smith v. Kansas, 10 Cir., 356 F.2d 654, Jan.
    1966, and is not consistent with a conclusion that the petitioner, as revealed by
    the files and records, has been denied no constitutional right. This record also
    suggests the potential issue of waiver of any constitutional right to counsel at
    the preliminary hearing. Appellant was represented by counsel at his trial. See
    Shultz v. United States, 10 Cir., 351 F.2d 287; Pearce v. Cox, 10 Cir., 354 F.2d
    884; Haier v. United States, 10 Cir., 357 F.2d 336, Jan. 1966.

    The case is remanded to the district court for further proceeding consistent with
    this opinion and with directions to make and enter specific findings and
    conclusion as required by Rule 52(a), Fed.R.Civ.P.

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