Seitz, Aldisert and Stahl, Circuit Judges.
This is an appeal from an order of the district court denying a petition for habeas corpus. No evidentiary hearing was held. The lower court issued a certificate of probable cause for an appeal. In the petition, appellant, a state prisoner, alleged that his conviction had been obtained by perjured testimony.*fn1 In this appeal he claims that the district court committed error by its summary dismissal of his petition because the record on which the order was based was not a "full and uncontested record of the state proceedings."*fn2
As we are not certain whether the district court had before it all of the relevant state records when it dismissed the appellant's petition, we do not pass on the merits of the petition.
Appellant was tried and convicted by a jury on two counts of burglary, and sentenced on October 30, 1963, to a term of two to eight years. The record does not show any direct appeal from this conviction. Appellant was paroled in October 1966, and subsequently recommitted as a parole violator in February 1967. Prior to his parole, appellant had filed two unsuccessful habeas corpus petitions in the state courts. In the second habeas corpus proceeding an evidentiary hearing was held and appellant was represented by appointed counsel. No appeal was taken from either dismissal.
Following appellant's recommitment, he filed a petition under the Pennsylvania Post-Conviction Hearing Act in which he was represented by appointed counsel. An answer was filed by the District Attorney and, after oral argument, a hearing was refused and the petition dismissed in an opinion by the state court discussing appellant's contentions. The dismissal was affirmed per curiam by the Pennsylvania Superior Court in Commonwealth v. Thomas, 211 Pa.Super. 741, 235 A.2d 824 (1967), allocatur denied February 13, 1968. State remedies have thus been exhausted.
In the district court appellant raised the same basic issue as in the state proceedings, i.e., that his conviction resulted from the use of perjured testimony.
The district court's denial of appellant's petition for a writ of habeas corpus was predicated upon the examination, as the court put it, of the "documents presented" to it, particularly the opinion of the state court disposing of the post-conviction hearing petition. "Under federal standards," the district court said in its unreported order, "the State Court has disposed of all petitioner's contentions."
The 1966 amendment to § 2254 of Title 28, United States Code, upon which the district court was no doubt relying, provides, subject to a number of exceptions, that in habeas corpus proceedings by state prisoners in federal courts,
a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct * * *.
The district court did not indicate the nature of the "documents presented" which it considered in denying appellant's application for habeas corpus. The record shows the court had appellant's petition for the writ, to which were appended the opinion of the state court in the post-conviction hearing proceeding and the Pennsylvania Superior and Supreme Court orders.*fn3 It does not appear the district court had before it either the transcript of the state habeas corpus proceeding in which a hearing had been held or the trial transcript.
The 1966 amendment to § 2254 was designed to "relieve federal courts of the necessity of relitigating factual issues determinative of federal rights claimed by state prisoners,"*fn4 and to that end a state court determination, after a hearing on the merits of a factual issue, is presumed to be correct. While § 2254 thus allows the district courts to dispose of habeas corpus petitions by state prisoners without the necessity of an evidentiary hearing, it does not eliminate the duty of these courts, in affording presumptive validity to state-found facts, to review the record of the state proceeding in which the factual issues were determined.*fn5 It should be kept in mind that the state post-conviction proceeding on which the district court primarily relied was itself decided without an evidentiary hearing.*fn6 The state court relied, in turn, on the trial transcript, to which references were made in its opinion, and on the prior state habeas corpus proceedings, one of which involved an evidentiary hearing.*fn7
Because there is a likelihood that the district court did not have before it a transcript of any of the state proceedings we have referred to above, it is necessary to return the matter to the court for further consideration consistent with this opinion. We believe it incumbent upon the district court to examine at least the state habeas corpus hearing transcript and, if that does not fully support the proper determination of the factual issues involved, to examine the transcript of the trial as well.*fn8 To follow the mandate as phrased in Maes v. Patterson, supra 401 F.2d at 202,
If upon such review the court is satisfied that the presumption of correctness is not dissipated the petition and action may then be dismissed without further proceedings; if not so ...