476 F2d 1288 Minafee v. Jones

476 F.2d 1288

Otis MINAFEE, Petitioner-Appellant,
v.
Clarence JONES, Sheriff, Dallas County Jail, Texas, et al.,
Respondents-Appellees.

No. 72-3114 Summary Calendar.a

United States Court of Appeals,
Fifth Circuit.

May 17, 1973.

E. Eldridge Goins, Dallas, Tex. (Court-appointed), for petitioner-appellant.

Henry Wade, Crim. Dist. Atty., John B. Tolle, Asst. Dist. Atty., Dallas, Tex., John L. Hill, Atty. Gen., Austin, Tex., for respondents-appellees.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

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1

In this habeas corpus proceeding involving a Texas state conviction for robbery with firearms, appellees state in their brief to this Court that they were not required by the district court to respond to appellant's application for habeas corpus and did not make an appearance in district court. They agree that the case is governed by our prior holding in Gerzin v. Beto, 5 Cir., 1972, 459 F.2d 671, and aver that appellant's brief raises several questions which are not in the record before this Court. They contend that there is also a substantial question not raised by appellant and that is whether or not appellant has exhausted his available state remedies. Finally, appellees agree that this cause should be remanded to the district court for proper determination of these questions.

2

Under the circumstances it is proper that the cause be remanded to the district court for further proceedings.

3

Vacated and remanded to the district court for further proceedings.

a

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I