Biggs, Adams and Max Rosenn, Circuit Judges. Adams, Circuit Judge (concurring).
MAX ROSENN, Circuit Judge.
This is a pro se appeal from a decision of the United States District Court for the District of New Jersey, denying petitioner-appellant's application for a writ of habeas corpus pursuant to 28 U.S.C. Section 2241 et seq.
Appellant is serving a term of life imprisonment and is presently confined in the New Jersey State Prison at Trenton, on a sentence imposed by the Monmouth County Court on February 2, 1947. He was indicted for a first degree murder on September 19, 1946. After a trial of three days, appellant withdrew his plea of not guilty and entered a plea of non vult.*fn1
Appellant took no direct appeal from his conviction, but an application for habeas corpus was eventually filed in the Monmouth County Court. It was denied on January 16, 1964, in an opinion which contains a summary of certain testimony at that hearing (first hearing). While the summary is in the records, the transcript of this hearing appears to be lost.
Subsequently, appellant applied in the state court for post conviction relief under the New Jersey Rules. On December 3, 1964, after a hearing (second hearing), appellant's application for post conviction relief was denied. At this hearing, appellant's attorney during his trial on the indictment for murder testified. A full transcript of this hearing appears in the record and reveals that appellant was not present in the court during this testimony. An appeal from this judgment was dismissed by the New Jersey Supreme Court on May 12, 1965.
On August 27, 1968, appellant filed an application for habeas corpus in the United States District Court for the District of New Jersey. Appellant's petition alleged that his indictment and conviction were based on a confession which had been produced by beatings and denial of counsel; and that his plea of non vult had been forced on him by his assigned counsel in collusion with the trial judge. The district court, in a written opinion, found that appellant's confession had not resulted from beatings or denial of counsel; it found that his plea of non vult was freely and understandably given and dismissed the petition.
The district court reached these conclusions by relying on both the summary of the proceedings of the first hearing, which was provided in the opinion of the judge who presided at that hearing, and on a transcript of the testimony in the second hearing of appellant's trial lawyer. As noted above, regrettably and inexplicably, the appellant was not personally present at the second hearing when his trial counsel gave testimony pertaining to the trial proceedings on the murder charge.
We do not reach the important substantive issues raised by the appellant in the district court concerning his plea since we are confronted with the threshhold question of whether the court below had an adequate record on which it could deny appellant's application for relief. We find that it did not because of the unfortunate loss of the transcript of testimony of the first hearing and the crucial absence of the appellant during his second hearing.
Appellant raised a serious constitutional issue in his application for habeas corpus in the district court. He charged that his plea had been forced upon him.*fn1a This contention could only have been resolved by findings of fact. To resolve the issues of fact, the district court turned first to the "summary" of the first hearing, which was provided in the opinion of the judge who presided at that hearing.
An examination of the judicial summary in the opinion of the first hearing reveals that it supplied only those facts which the court believed necessary to substantiate its denial of appellant's appeal for habeas corpus. Although this summary was prepared by the judge who conducted the hearing and heard the testimony, we do not believe that it could have formed a sufficient record by which the district court could determine whether the petitioner had received a full and fair state court hearing on the issues raised by him. United States ex rel. Jennings v. Ragen, 358 U.S. 276, 79 S. Ct. 321, 3 L. Ed. 2d 296 (1959), fortifies our conclusion since the Supreme Court there held that a district court, in determining in a habeas corpus application whether defendant's confession had been coerced, could not merely rely "on the facts and conclusions stated in the opinion of the Supreme Court of Illinois" without examining the record of proceedings in the state courts.
Jennings must be read as supplying a guideline to the holding in Townsend v. Sain, 372 U.S. 293, 319, 83 S. Ct. 745, 760, 9 L. Ed. 2d 770 (1963), in which the Supreme Court stated:
Such a record -- including the transcript of testimony (or if unavailable some adequate substitute, such as a narrative record), the pleadings, court opinion, and other pertinent documents -- is indispensable to determining whether the habeas applicant received a full and fair state-court evidentiary hearing resulting in reliable findings. See United States ex rel. Jennings v. Ragan, (sic), 358 U.S. ...