SIMPSON, Circuit Judge:
Calvin Sellars, a Texas State prisoner under sentence of death for robbery by firearms, appeals from the denial of his petition for writ of habeas corpus. A prior petition was dismissed by the district court for failure to exhaust state remedies under Article 11.07, Vernon's Ann. Texas Code of Criminal Procedure, applying our decision in Texas v. Payton, 5 Cir. 1968,
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