DONALD LEE KIRBY, PETITIONER-APPELLANT,
v.
DR. GEORGE J. BETO, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE
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The court held that the federal habeas corpus petition should have been dismissed for failure to exhaust state remedies, not on the merits.
Petitioner was convicted of unlawful possession of heroin in Texas state court and sought federal habeas corpus relief. His current petition raised gr…
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PER CURIAM:
Petitioner was convicted in Texas state court of unlawful possession of heroin and was sentenced to fifteen years imprisonment. The District Court dismissed his petition for habeas corpus relief on the merits. We find, however, that the petition should have been dismissed for failure to exhaust state remedies.
This Court affirmed a prior denial of habeas corpus relief to the appellant. Kirby v. Beto, 426 F. 2d 258 (5th Cir. 1970). The grounds for relief set out in the instant habeas petition, however, are different from those alleged in the appellant’s earlier federal petition. In this petition Kirby alleges: (1) the contraband seized was inadmissible because it was not listed on the search warrant; (2) the search warrant was invalid because it was obtained through false swearing; and (3) the search warrant was invalid for lack of probable cause because the informer was not a credible person. These contentions were not urged on Kirby’s direct state criminal appeal or in any state habeas corpus petition.
The record shows that petitioner has failed to exhaust his available state remedies, as required by 28 U.S.C.A. § 2254. The contentions stated in the present ha-beas petition have yet to be considered by the Texas Court of Criminal Appeals under Article 11.07 of the Texas Code of Criminal Procedure, Vernon’s Ann. St. See St. Jules v. Beto, 462 F. 2d 1365 (5th Cir. 1972).
Vacated and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lawson v. Estelle, 491 F.2d 1100 (5th Cir. 1974)
Authorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- ST. Jules v. Beto, 462 F.2d 1365 (5th Cir. 1972)
- Kirby v. Beto, 426 F.2d 258 (5th Cir. 1970)