Clоudies Shinall, state prisoner, appeals from the denial of his petition for writ of habeas corpus. Petitioner was conviсted of murder on August 6, 1966, in the Circuit Court of Forrest County, Mississippi. Inasmuch as the jury in its verdict did not recommend mercy, the trial judge was required to and did impose the death penalty. This was the second trial for petitioner, an earlier conviction and death sentence hаving been reversed because of exclusion of Negroes from the grand and petit juries. Shinall v. State,
Petitioner raised a number of grounds in the district court, which for convеnience may be grouped. The first group concern the alleged constitutional infirmities with the choice of grand and petit jurors. Under this group, petitioner contended:
1. That Negroes were excluded from the venire of the grand and petit juries which indicted аnd convicted petitioner. This complaint concerns the actions of the registrar of Forrest County, Mississippi.
2. That the state prosecutors aided in the exclusion of Negroes from the petit jury by using their peremptory challenges to excuse any Negroes.
3. That women by law are excluded from jury service in Mississippi. White v. Crook,
4. That persons conscientiously scrupled against the dеath penalty were excluded for cause. Witherspoon v. State of Illinois,
The next group involve the imposition of the death penalty in this case. Under this group petitioner contended:
1. That the death penalty violates petitioner’s due proсess rights in that it exceeds the maximum statutory penalty for homicide committed while resisting unlawful arrest. With regard to this ground, petitioner cоntends that the attempted arrest of petitioner by the deceased, a constable, was constitutionally unlawful and that therefore the most he could be guilty of was homicide committed while resisting unlawful arrest, a statutory non-capital crime in Mississippi.
2. That thе Mississippi statute which allows the petit jurors to decide the penalty of life or death is a denial of due process in that the jurors are left to their unfettered, unreviewable, and unregulated discretion in that there are no standards for the jury to determine the proper penalty.
3. That the above-mentioned procedure is further constitutionally defective in that it forces a defendant such as petitioner to choose between two constitutional rights. Since, as petitioner points out, the verdict on guilt and punishment are returned simultaneously, the defendant who wishes to exercise his right to allocution is forced to take the stand during his triаl and thus waive his privilege against self-incrimination, and of course the converse, that is, if he elects *787 not to take the stand and exercise his privilege against self-incrimination he is forced to waive his right to allocution.
All the grounds raised under the above two grоups were raised before the Mississippi Supreme Court and it thus appears that the petitioner has exhausted his state remedies. However, in the district court petitioner raised two other grounds — denial of the right to present a defense of justifiable homicide and denial of counsel at post-arrest interrogation stages, which, it appears, were not raised in the state cоurts. As to these two grounds then, it would appear that the Court was not in error in denying the petition for failure to exhaust state remedies.
The sole question which petitioner raises in this Court is whether upon his petition he was entitled to an evidentiary hearing. Initially, it is difficult to determine this issue in that the order of the lower court denying the petition states no findings or reasons for the denial. As one court has hеld,
[I]t is therefore imperative that denial either of leave to file the petition [of habeas corpus] or denial of thе writ itself, be accompanied by an expression of the reasons for the denial, either by informal memorandum, by recitals in an order, or by findings [citing cases]. The failure to make such findings in this ease requires a remand for further consideration and findings. Tatem v. United States,107 U.S.App.D.C. 230 ,275 F.2d 894 , 896 (1960).
In addition the transcript of the hearing on the rule to show cause was not made a part of the record before this Court. However it is clear that the petition raised a number of factual allegations which if proven would entitle petitioner to reliеf. For example, the question of whether Negroes have been unconstitutionally excluded from the grand or petit juries, whether persons conscientiously scrupled against the death penalty were excluded from the petit jury in such a manner so as to viоlate the rule set forth in Irving v. Breazeale,
While some of thе points raised in the petition are purely legal issues upon which this Court could rule at this time, the petitioner recognizes and we agree that the better procedure would be to re-submit the entire case to the district court on all points, with the exception of those on which the petitioner failed to exhaust his state remedies, for complete determination.
Accоrdingly, the case is remanded to the district court for further consideration in accordance with this opinion. The stay of execution entered February 21, 1968, shall continue pending the final determination of this case in the district court and the appeal thereon, if any.