Opinion
No. 73-3391. Summary Calendar.
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir., 1970, 431 F.2d 409, Part I.
March 29, 1974.
E. Eldridge Goins, Jr., Dallas, Tex. (Court-appointed), for petitioner-appellant.
Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GEWIN, GODBOLD and CLARK, Circuit Judges.
The district court dismissed the habeas petition of Otis Minafee on the merits of all but one of the contentions raised. Finding that contention had not been exhausted in the state forum, it was dismissed without prejudice.
Although it recognized that the specific constitutional arguments in Minafee's petition had not been presented to the Texas courts, the district court found that the alleged errors asserted on Minafee's direct appeal in Texas had been predicated upon the same factual bases as his federal habeas contentions. This factual sameness will not support a holding that such constitutional assertions have been exhausted. See Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438, 444 (1971).
The cause is vacated and remanded with instructions to the district court to dismiss without prejudice as to all issues.
Vacated and remanded.