We are convinced that Appellant is now without any effective remedy in the State courts of Alabama. See, e. g., Bartz v. Wainwright, 5 Cir., 1971, 451 F.2d 663; Williams v. Wainwright, 5 Cir., 1971, 452 F.2d 775; Brown v. Allen, 1953, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Thomas v. Decker, 5 Cir., 1970, 434 F.2d 1033; Malone v. Wainwright, 5 Cir., 1970, 433 F.2d 927; Hill v. Beto, 5 Cir., 1968, 390 F.2d 640, cert. denied, 393 U.S. 1007, 89 S.Ct. 491, 21 L.Ed.2d 472. We do not have a question of deliberate by-pass.
Brown has often been applied in the Fifth Circuit. See, e. g., Bartz v. Wainwright, 5 Cir. 1971, 451 F.2d 663 [decided November 19, 1971]; Thomas v. Decker, 5 Cir. 1970, 434 F.2d 1033; Malone v. Wainwright, 5 Cir. 1970, 433 F.2d 927; and Hill v. Beto, 5 Cir. 1968, 390 F.2d 640, cert. den. 393 U.S. 1007, 89 S.Ct. 491, 21 L.Ed.2d 472. Thus, after a thorough search of the record in the instant case and the applicable law, we conclude that the lower court erroneously dismissed McCluster's petition for failure to exhaust state remedies.
28 U.S.C.A. ยง 2254. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Thomas v. Decker, 434 F.2d 1033 (5th Cir. 1970); Malone v. Wainwright, 433 F.2d 927 (5th Cir. 1970); Hill v. Beto, 390 F.2d 640 (5th Cir.), cert. denied, 393 U.S. 1007, 89 S.Ct. 491, 21 L.Ed.2d 472 (1968). In February of 1966, Bartz was convicted upon a plea of guilty in a Florida state court of the offense of fondling and handling a female child under the age of 14 years.
The case is remanded to the district court for findings of fact and conclusions of law. Miller v. Henderson, 435 F.2d 688 (5th Cir. 1970); Malone v. Wainwright, 433 F.2d 927 (5th Cir. 1970); Colson v. Smith, 427 F.2d 143 (5th Cir. 1970). Reversed and remanded.
It appears that petitioner has exhausted his state remedies. Malone v. Wainwright, 433 F.2d 927 (5 Cir. 1970). Petitioner, at the time he filed the instant petition was in the custody of E. Wilson Purdy, Sheriff of Dade County, Florida, apparently awaiting transfer to a state prison to continue service of his sentence.
In this petition for writ of habeas corpus, petitioner alleges the same grounds for relief he alleged on direct appeal. Therefore, petitioner has exhausted his state remedies. Malone v. Wainwright, 433 F.2d 927 (5 Cir. 1971). In essence, the grounds urged are that a probationer is entitled to the benefits of the Fourth Amendment of the United States Constitution and Section 12 of the Florida Declaration of Rights; that evidence as to his possession of heroin on October 13, 1969, should have been suppressed; and that there was not sufficient evidence presented to sustain the accusation that petitioner had failed to avoid association with a person of harmful character and bad reputation.