U.S. Court of Appeals for the Eleventh Circuit, 2008

David Beverly v. Jack Sapp

David Beverly v. Jack Sapp
U.S. Court of Appeals for the Eleventh Circuit · Decided April 30, 2008 · Birch, Dubina, Hill, Per Curiam
275 F. App'x 883

David Beverly v. Jack Sapp

Opinion

PER CURIAM:

Petitioner David Beverly appeals the district court’s order denying him habeas relief under 28 U.S.C. § 2254.

After reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we conclude that we must vacate the district court’s order and remand this case for further proceedings.

In Gagnon v. Scarpelli, 411 U.S. 778, 790, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court stated that “counsel should be provided in cases where, after *884 being informed of his right to request counsel, the probationer or parolee makes such a request based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty....” The record here demonstrates that Beverly’s request for the appointment of counsel was timely; however, neither the hearing officer nor the district court addressed the colorability of Beverly’s claim that he did not commit the alleged violations of the conditions upon which he was at liberty. Consequently, we are unable to adequately review Beverly’s claim as a result of the incomplete record. Accordingly, we vacate the district court’s order and remand this case for further proceedings consistent with this opinion.

VACATED and REMANDED.

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