
    Toby QUARLES, Appellant, v. R. P. BALKCOM, Jr., Warden, Georgia State Prison, Appellee.
    No. 22491.
    United States Court of Appeals Fifth Circuit.
    Jan. 11, 1966.
    Thomas F. Walsh, Savannah, Ga., for appellant.
    Peyton S. Hawes, Jr., Albert Sidney Johnson, Asst. Attys. Gen., Eugene Cook, Former Atty. Gen. of Georgia, Arthur K. Bolton, Atty. Gen. of Georgia, Marion 0. Gordon, Atlanta, Ga., for appellee.
    Before BROWN, WISDOM and THORNBERRY, Circuit Judges.
   PER CURIAM:

In 1957, appellant, with appointed counsel present, entered a plea of guilty in state court to five separate indictments. Four of the indictments charged appellant with offenses purportedly committed on January 9, 1954, and the other indictment alleged an offense allegedly committed on December 17, 1953. Appellant was sentenced to serve five years for each offense charged, or a total of twenty-five years.

On August 18, 1964, appellant sought habeas corpus relief in the United States District Court. His petition alleged that he was incarcerated in county jail on January 9, 1954, and therefore could not have committed the offenses alleged in four of the indictments. According to appellant, his plea of guilty to those charges was a mistake, in that he thought he was pleading guilty to a single burglary in another county which in fact the indictment did not mention.

The district court held a hearing on appellant’s habeas petition, and at the hearing it was proved that appellant was in fact incarcerated on January 9, 1954. The district court denied the petition, however, on the ground that the appellant was then serving the sentence resulting from the indictment alleging an offense on December 17, 1963, and was therefore not serving the sentences under attack. During the pendency of this appeal, however, appellant completed service of the uncontested sentence.

It is true that “questions of guilt or innocence are not matters to be considered upon petition for habeas corpus. The sole purpose of such proceedings is to test the validity or legality of the restraint of the petitioner.” Shaver v. Ellis, 5th Cir. 1958, 255 F.2d 509, at 511. Nevertheless, a substantial question is here presented as to the adequacy of the representation furnished appellant by his court-appointed counsel at the time of the entry of his pleas of guilty. Appellee concedes that the hearing before the district court did not touch deeply on the question of the scope of the pre-trial investigation by counsel. We agree, and we feel that this question must now be thoroughly examined, especially with regard to whether there was an adequate exploration and explanation of the allegations in the indictment. The following language from Jones v. Cunningham, 4th Cir. 1963, 313 F.2d 347, cert. denied 375 U.S. 832, 84 S.Ct. 42, 11 L.Ed.2d 63, is pertinent here:

“Of course, it is not for a lawyer to fabricate defenses, but he does have an affirmative obligation to make suitable inquiry to determine whether valid ones exist. Such a duty is imposed for the salutary reason that ‘[pjrior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.’ Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948).”

Therefore, the order appealed from is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.  