Minafee v. Estelle, 491 F.2d 1096 (5th Cir. 1974)
491 F.2d 1096
US-DOC-21116517
locator
Case details
Bluebook Citation
Minafee v. Estelle, 491 F.2d 1096 (5th Cir. 1974)
Full caption
Otis MINAFEE, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
Country
United States
Jurisdiction
Federal
Court
5th Cir.
Decided
Mar. 29, 1974
Disposition
Vacated and Remanded
No. 73-3391
Summary Calendar.*
March 29, 1974.
E. Eldridge Goins, Jr., Dallas, Tex. (Court-appointed), for petitioner-appellant.
Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
PER CURIAM:
The district court dismissed the habeas petition of Otis Minafee on the merits of all but one of the contentions raised. Finding that contention had not been exhausted in the state forum, it was dismissed without prejudice.
Although it recognized that the specific constitutional arguments in Minafee’s petition had not been presented to the Texas courts, the district court found that the alleged errors asserted on Minafee’s direct appeal in Texas had been predicated upon the same factual bases as his federal habeas contentions. This factual sameness will not support a holding that such constitutional assertions have been exhausted. See Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438, 444 (1971).
The cause is vacated and remanded with instructions to the district court to dismiss without prejudice as to all issues.
Vacated and remanded.
*
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir. 1970, 431 F.2d 409, Part I.