Carroll v. Beto

270 F. Supp. 812, 1967 U.S. Dist. LEXIS 8735

Opinion

MEMORANDUM ORDER DISMISSING APPLICATION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

BREWSTER, District Judge.

Relator is presently confined in the Texas Department of Corrections pursuant to a sentence of death by electrocution imposed upon him following his conviction by a jury of the offense of murder with malice.

The application shows on its face that the relator has not attempted to exhaust any state post-conviction remedy presently available to him. Article 11.07 of the Vernon’s Ann. Texas Code of Criminal Procedure provides an effective post-conviction remedy which satisfies the dictates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The remedy afforded by Article 11.07 of the Texas Code of Criminal Procedure is presently available to the relator.

Because relator has failed to exhaust his presently available and effective state post-conviction remedies, he is not now entitled to a plenary hearing in this Court. Case v. State of Nebraska, 381 U.S. 336, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965); Key v. Holman, 5 Cir., 346 F.2d 153 (1965); Pate v. Holman, 5 Cir., 343 F.2d 546 (1965); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); 28 U.S.C.A., Section 2254.

It is therefore ordered that relator’s application for writ of habeas corpus be, and the same is hereby dismissed without prejudice.