Howard MATTHESON, Petitioner-Appellant,
v.
John T. KING, Secretary of the Department of Corrections and
Ross Maggio, Jr., Warden, Louisiana State
Penitentiary, Respondents-Appellees.
No. 83-3753.
United States Court of Appeals,
Fifth Circuit.
Dec. 6, 1983.
Matthew Greenbaum, New Orleans, La., for petitioner-appellant.
William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, La., for respondents-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.
BY THE COURT:
IT IS ORDERED that appellant's motions for a certificate of probable cause and for leave to appeal in forma pauperis are granted and the appeal is hereby docketed. The district court's dismissal of appellant's petition for a writ of habeas corpus under Rule 9(b) without a hearing and on the basis of what is, in effect, a one sentence order is reversed. The case is remanded to the district court with instructions to hold a hearing on the issue of abuse of the writ. Without intending to foreclose an independent and careful consideration by the district court of that issue, this court notes that it has serious misgivings about whether an order holding that appellant had abused the writ would be sustainable if appellant is able to establish at that hearing the facts suggested in his motions to this court.
IT IS FURTHER ORDERED that appellant's motion for a stay of execution is granted pending further order of this court.
