332 F.2d 787
Dennis Manaford WHITNEY, Appellant,
v.
Louie L. WAINWRIGHT, Director of Division of Corrections,
State of Florida, Appellee.
No. 21193.
United States Court of Appeals Fifth Circuit.
Jan. 17, 1964.
Dennis Manaford Whitney, Raiford, Fla., for appellant.
Richard Ervin, Atty. Gen. St. of Fla., Tallahassee, Fla., for appellee.
Before BROWN and WISDOM, Circuit Judges, and JOHNSON, District Judge.
PER CURIAM.
The District Court denied the Petition for Writ of Habeas Corpus and also declined to issue a Certificate of Probable Cause, 28 U.S.C.A. 2253. The District Court's findings and conclusions in the Order denying the Petition for Habeas Corpus reflect that the Petition was considered solely on the basis of the report filed by the Commissioner theretofore appointed by the Supreme Court of Florida. Whitney v. Cochran, Sup.Ct. of Fla., 1963, 152 So.2d 727, 729, cert. denied, 1963, 375 U.S. 888, 84 S.Ct. 166, 11 L.Ed.2d 118.
In this capital case, we cannot say that the question of whether the District Judge also had to have before him the complete record of the proceeding before the Commissioner is so lacking in substance that it should be dismissed as frivolous. Cf. Coppedge v. United States, 1962, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21. Rather than add further delays by postponing decision on this question to the hearing on the merits of the appeal and a possible remand thereafter this Court concludes that the Order denying the Petition for Habeas Corpus should be vacated, and the matter remanded so that the District Judge can thereupon reconsider the case in the light of both the report of the Commissioner and the full record of pertinent evidence made before the Commissioner. See Allison v. Holman, Warden, 5 Cir., 1963, 326 F.2d 294, and Draper v. Washington, 1962, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899.
The result is that we grant the Certificate of Probable Cause and vacate and remand the cause for further consistent proceedings. Pending such decision by the District Court, execution of the sentence of death is hereby stayed.