MILTON D. LIZANA, APPELLANT,
v.
STATE OF ALABAMA, APPELLEE
MILTON D. LIZANA, APPELLANT,
STATE OF ALABAMA, APPELLEE
394 F.2d 512
Court of Appeals for the Fifth Circuit (1968)
Positive Treatment
Cited by 10 cases
Opinion of the Court
PER CURIAM:
The district court denied this habeas corpus petition filed by an Alabama state prisoner for failure “to exhaust his presently available State remedies.” It is true that appellant has failed to appeal from the denial of his coram nobis petition, and the six-month period allowed for appeal from that order of May 21, 1967, had not expired when he filed his petition below on September 25, 1967, or when the court denied that petition. See Allen v. State, 42 Ala.App. 9, 150 So. 2d 399, 401 (1963). Nevertheless, the appeal period has now expired and there is no state remedy presently available to determine the validity of appellant’s claims which concern matters dehors the record. Hence, we hold that the exhaustion requirements of 28 U.S. C.A. § 2254 have been met, since appellant presently has no available state remedy. Bell v. State of Alabama, 5 Cir., 367 F. 2d 243.
We conclude, therefore, that a return and an evidentiary hearing must be held.
The judgment is reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harris Percy Wynn v. Smith, 446 F.2d 341 (5th Cir. 1971)
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Hairston v. State OF Ala., 465 F.2d 675 (5th Cir. 1972)
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McArthur Harris v. State OF Ala., 429 F.2d 1236 (5th Cir. 1970)
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- Cecal Bell v. State OF Ala., 367 F.2d 243 (5th Cir. 1966)