Dempsey Edward Horn v. Dr. George J. Beto, Director, Texas Department of Corrections

423 F.2d 583, 1970 U.S. App. LEXIS 10256

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 18, 1970
• Docket: 28459_1
• Status: Published

Opinion

PER CURIAM:

This appeal is taken from an order of the District Court denying, without a hearing the petition of a Texas convict for the writ of habeas corpus. We affirm. 1

Appellant was convicted upon his plea of guilty of robbery by firearms and was sentenced to 17 years’ imprisonment. In his petition to the court below he contends that he is entitled to have the time spent on parole credited toward his sentence, thus entitling him to immediate release. The district court denied relief for failure to exhaust state remedies.

Appellant has failed to show that he has presented his contentions to the Texas courts via habeas corpus proceedings pursuant to Article 11.07, Vernon’s Ann.Tex.C.Crim.P. Therefore, the court below was correct in dismissing the petition. 28 U.S.C. § 2254; Texas v. Payton, 5th Cir. 1968, 390 F.2d 261; Wheeler v. Beto, 5th Cir., 1969, 407 F.2d 816. The judgment below is affirmed.

Affirmed.

1 . 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.