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KIRBY v. BETO

No. 72-2267 Summary Calendar

472 F.2d 167 (1973)

Donald Lee KIRBY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

United States Court of Appeals, Fifth Circuit.

Rehearing Denied March 8, 1973.

Attorney(s) appearing for the Case

Donald Lee Kirby, pro se.

Crawford Martin, Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

Petitioner was convicted in Texas state court of unlawful possession of heroin and was sentenced to fifteen years imprisonment. The District Court dismissed his petition for habeas corpus relief on the merits. We find, however, that the petition should have been dismissed for failure to exhaust state remedies.

This Court affirmed a prior denial of habeas corpus relief to the appellant. Kirby v. Beto, 426 F.2d 258

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