594 F2d 43 Turner v. L Wainwright

594 F.2d 43

John James TURNER, Petitioner-Appellant,
v.
Louie L. WAINWRIGHT, Director, Division of Corrections,
State of Florida, Respondent-Appellee.

No. 76-4119.

United States Court of Appeals,
Fifth Circuit.

March 27, 1979.

Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.

On Petition for Rehearing

BY THE COURT:

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1

Ruling on this petition was held pending a review by the En banc Court of the panel opinion in Stinson v. State of Alabama, 5 Cir. 1977, 545 F.2d 485. The En banc opinion, reported at 582 F.2d 377, remanded Stinson to the panel for consideration in light of the decision in Galtieri v. Wainwright, 5 Cir. 1978, 582 F.2d 348 (en banc).

2

Having applied the Galtieri standards to the matter before us, we deny the petition. Turner's petition to the district court for the writ of habeas corpus was a "mixed" one, containing both exhausted and unexhausted issues.

3

The policy in this circuit is that a federal district court must dismiss without prejudice a "mixed" petition for a writ of habeas corpus. Galtieri at 355.

4

REHEARING DENIED.