SELLARS v. BETO

No. 28003.

430 F.2d 1150 (1970)

Calvin SELLARS, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

United States Court of Appeals, Fifth Circuit.

July 28, 1970.


Attorney(s) appearing for the Case

Will Gray, Houston, Tex., George Leppert, G. Wray Gill, New Orleans, La., for petitioner-appellant.

Crawford C. Martin, Atty. Gen., of Texas, Nola White, First Asst. Atty. Gen., Hawthorne Phillips, Executive Asst. Atty. Gen., Robert C. Flowers, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for appellee.

Before AINSWORTH, DYER and SIMPSON, Circuit Judges.


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, 390 F.2d 261. However,

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