Ernest Cox v. Harold J. Cardwell, Warden

CELEBREZZE, Circuit Judge

(concurring in the result).

I concur in the decision to reverse the judgment of the District Court on the ground that Petitioner-Appellee had failed to exhaust his state remedies.

I also concur in the determination that the District Court was clearly erroneous in finding sufficient evidence to support Petitioner-Appellee’s claim that he had been denied effective assistance of counsel and due process of law in his state court trial. I do not believe, however, that the latter determination requires that this Court weigh the evidence which was before the District Court and make its own findings of fact. I believe it is especially improper for this Court, or any court, to draw any inference from a defendant’s refusal to take the stand in his own behalf.