759 F.2d 1195
James FLOWERS, Petitioner-Appellant,
v.
Frank BLACKBURN, Warden, Louisiana State Penitentiary,
Angola, Respondent-Appellee.
No. 85-3214.
United States Court of Appeals,
Fifth Circuit.
April 23, 1985.
Michele Gaudin, New Orleans, La., for petitioner-appellant.
William C. Credo, Dorothy A. Pendergast, Asst. Dist. Attys., Gretna, La., for respondent-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GEE, RUBIN and RANDALL, Circuit Judges.
PER CURIAM:
On April 12, 1985, we granted the motion of petitioner James Flowers for a stay of execution and asked the district court to provide us with a statement of reasons for the denial of each claim presented in petitioner's application for a writ of habeas corpus. 759 F.2d 1194. Having received those reasons, together with the district court record, it now appears that the record from Flowers' murder trial in state court was not filed in the district court and was not reviewed by the district court in reaching its decision. At least three of petitioner's claims--(1) that the jury instructions from the guilt-innocence phase of the trial relieved the state of the burden of proving an essential element of the crime; (2) that the jury instructions from the sentencing phase of the trial allowed the jury to impose the death penalty in violation of the principles enunciated in Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); and (3) that the state trial court erroneously excluded jurors who expressed scruples against the death penalty--cannot be adequately assessed without reference to the trial transcript. Accordingly, the district court's order is vacated, and the case is remanded with instructions to obtain the record of the state court trial, to review petitioner's claims in the light of the record, and to enter new findings and conclusions as necessitated by that review. If on remand the district court denies relief, it will be necessary for Flowers to file a new notice of appeal and a new application for a certificate of probable cause.
Petitioner's application for a certificate of probable cause is granted, the district court's order is vacated, and the case is remanded with instructions.
VACATED AND REMANDED WITH INSTRUCTIONS.