564 F2d 199 McDonald v. W J Estelle

564 F.2d 199

Bufford Lenell McDONALD, Petitioner-Appellee,
W. J. ESTELLE, Jr., Director, Texas Department of
Corrections, Respondent- Appellant.

No. 76-1576

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Dec. 8, 1977.

John L. Hill, Atty. Gen., Patrick P. Rogers, Asst. Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Joe B. Dibrell, Chief, Enforcement Div., Asst. Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

James D. Durham, Jr., Amarillo, Tex., (court-appointed) for petitioner-appellee.

Before THORNBERRY, CLARK and TJOFLAT, Circuit Judges.


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In the district court the petitioner was granted federal habeas corpus relief from a sodomy conviction in the State of Texas. The basis for relief stemmed from the state's use of a prior uncounseled conviction against the petitioner at the punishment stage of his bifurcated trial. This prejudicial evidence was not objected to by petitioner's trial counsel as required by the Texas contemporaneous objection rule. We affirmed that grant of relief on the basis of the district court's opinion. McDonald v. Estelle, 536 F.2d 667 (5th Cir. 1976). The respondent then sought certiorari review of our judgment in the Supreme Court. The Court vacated our judgment and remanded the case to us for further consideration in light of its intervening decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Estelle v. McDonald, --- U.S. ----, 97 S.Ct. 2967, 53 L.Ed.2d 1088 (1977).


Under Sykes, petitioner is precluded from obtaining federal habeas relief due to his procedural default unless he can establish cause for failing to object and that his trial was prejudiced by the introduction of the prior uncounseled conviction evidence. Inasmuch as we have already determined that this evidence was prejudicial, we remand this matter to the district court for the limited purpose of providing petitioner the opportunity to demonstrate cause for his noncompliance with the Texas contemporaneous objection rule. See Jiminez v. Estelle, 557 F.2d 506 (5th Cir. 1977). Absent such a showing, petitioner will not be entitled to relief.




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