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TOULSON v. BEYER

No. 92-5310.

987 F.2d 984 (1993)

Troy TOULSON v. Howard L. BEYER; Robert J. Del Tufo, the Attorney General of the State of New Jersey. Howard L. Beyer, Superintendent, New Jersey State Prison, and Robert J. Del Tufo, Attorney General of New Jersey, Appellants.

United States Court of Appeals, Third Circuit.

Decided March 12, 1993.

Attorney(s) appearing for the Case

Linda A. Rinaldi (Argued), Office of Atty. Gen. of New Jersey, Div. of Criminal Justice, Appellate Bureau, Trenton, NJ, for appellants.

Robert J. Candido (Argued), Cedar Grove, NJ, for appellee.

Before: HUTCHINSON and SCIRICA, Circuit Judges and STANDISH, District Judge.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this habeas corpus case involving a mixed petition,1 we must decide whether the district court properly reached and determined the merits of petitioner's claim that the state sentencing judge impermissibly based sentencing on facts not in the record. The district court ruled that although the petition's "mixed" status generally required dismissal without prejudice pending exhaustion...

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