510 F2d 1363 Tiner v. State of Alabama

510 F.2d 1363

Cecil TINER, Petitioner-Appellant,
v.
STATE OF ALABAMA, Respondent-Appellee.

No. 74-3835
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

April 3, 1975.

Emily Gassenheimer, Montgomery, Ala. (Court appointed), for petitioner-appellant.

William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Alabama; Robert E. Varner, Judge.

Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

PER CURIAM:

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The summary judgment rendered below is vacated and this cause remanded for a hearing to determine whether the appellant deliberately bypassed his state remedies. Should the district court find that appellant did not deliberately bypass such remedies, the constitutional questions presented by the appellant's petition for habeas corpus warrant a full hearing on the merits.

*

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