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JAMES v. RODRIGUEZ

No. 76-1047.

553 F.2d 59 (1977)

Johnny JAMES, Petitioner-Appellant, v. Felix RODRIGUEZ, Respondent-Appellee.

United States Court of Appeals, Tenth Circuit.

Decided April 12, 1977.

Rehearing Denied April 29, 1977.

Attorney(s) appearing for the Case

W. Michael Celestre, Window Rock, Ariz. (Robert Ericson, Window Rock, Ariz., on the brief), for petitioner-appellant.

Andrea R. Buzzard, Asst. Atty. Gen., Santa Fe, N. M. (Toney Anaya, Atty. Gen., Santa Fe, N. M., on the brief), for respondent-appellee.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The United States District Court for the District of New Mexico denied relief on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. Section 2254. The dismissal was without prejudice, the basis for it being that the prosecutor had no discretion in invoking the Habitual Criminal Act, that application of the Act did not constitute cruel and unusual punishment, and that the defendant had failed to exhaust his state remedies...

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