394 F2d 512 Lizana v. State of Alabama

394 F.2d 512

Milton D. LIZANA, Appellant,
v.
STATE OF ALABAMA, Appellee.

No. 25505.

United States Court of Appeals Fifth Circuit.

May 16, 1968.

Milton D. Lizana, pro se.

David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before TUTTLE and SIMPSON, Circuit Judges, and BREWSTER, District judge.

PER CURIAM:

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1

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.

2

We conclude, therefore, that a return and an evidentiary hearing must be held.

3

The judgment is reversed.