Opinion
No. 73-3548.
March 29, 1974.
Virgil G. Lawson, pro se.
Robert C. Flowers, Gilbert J. Pena. Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
Lawson, a prisoner of the State of Texas, appeals the district court's denial of his petition for federal habeas corpus. Because the record before this Court shows that the courts of Texas have never adjudicated the merits of the appellant's habeas grounds, we believe that the court below should have pretermitted decision until state remedies were exhausted. We therefore vacate the judgment appealed from the and remand this cause to the district court with directions to dismiss the appellant's habeas petition without prejudice to his right to reapply after pursuing his remedies under Art. 11.07, Vernon's Ann. Texas Code of Criminal Procedure. 28 U.S.C. § 2254(b); Redd v. Louisiana, 5th Cir. 1973, 489 F.2d 766; Kirby v. Beto, 5th Cir. 1973, 472 F.2d 167.
It is appropriate to dispose of this pro se case summarily, pursuant to this Court's Local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.
Vacated and remanded.