Smith vs. State of Oklahoma, (5th Cir. 1996)
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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 96-50162 USDC No. W-96-CV-36 BOBBY JOE SMITH, Petitioner-Appellant, versus STATE OF OKLAHOMA et al., Respondents-Appellees. Appeal from the United States District Court for the Western District of Texas June 14, 1996 Before HIGGINBOTHAM, DUHEÂ’ and EMILIO M. GARZA, Circuit Judges.
PER CURIAM: * Bobby Joe Smith requests a certificate of probable cause (CPC) to appeal. The district court dismissed Smith's habeas corpus petition for failure to exhaust state remedies, but did not specify which state or what remedies were to be exhausted.
He was not given an opportunity in the district court to show, as he has alleged in this court, that attempting to exhaust state remedies would be futile. See 28 U.S.C. § 2254(b); Deters v. Collins , 985 F.2d 789, 795 n.16 (5th Cir. 1993). SmithÂ’s request for CPC is GRANTED. The judgment of the district court is VACATED, and this action is REMANDED to the district court to determine what, if any, remedies are available to Smith in Texas and/or Oklahoma, and whether his attempt to exhaust state remedies would be futile.
VACATED and REMANDED.
No. 96-50162
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This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 2254 - Sec. 2254. State custody; remedies in Federal courts
- U.S. Court of Appeals for the Fifth Circuit - Jesse Joseph Deters, Petitioner-Appellant, v. James A. Collins, Director, Texas Dept. of Criminal Justice Institution Division, Respondent-Appellee., 985 F.2d 789 (5th Cir. 1993)
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