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RIDDLE v. COINER

No. 14053.

432 F.2d 925 (1970)

Elmer Ervin RIDDLE, Appellant, v. Ira M. COINER, Warden of the West Virginia State Penitentiary, Appellee.

United States Court of Appeals, Fourth Circuit.

Decided October 23, 1970.

Attorney(s) appearing for the Case

Louis Schoolnic, Fairmont, W. Va. (Court-assigned counsel), for appellant.

Cheryl Ann Wheeler, Asst. Atty. Gen. of W. Va. (Chauncey H. Browning, Jr., Atty. Gen. of W. Va., George E. Lantz, Deputy Atty. Gen., and Willard A. Sullivan, Asst. Atty. Gen., on the brief), for appellee.

Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges.

PER CURIAM:

It has been settled by the Supreme Court of West Virginia that a court record reciting that a recidivist has been "duly cautioned" is merely a "* * * conclusion instead of a statement of fact * * *" and is itself insufficient, when questioned, to establish the necessary warning to a recidivist. State ex rel. Beckett v. Boles, 149 W.Va. 112, 138 S.E.2d 851, 856 (1964).

Where, as here, the petitioner denies he...

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