Harry Walter McCutcheon v. Dr. George Beto, Director, Texas Department of Corrections

Fifth Circuit

Harry Walter McCutcheon v. Dr. George Beto, Director, Texas Department of Corrections

327 F.2d 228, 1964 U.S. App. LEXIS 6613

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 24, 1964

Docket20997

StatusPublished

Cited by6 cases

This text of 327 F.2d 228 (Harry Walter McCutcheon v. Dr. George Beto, Director, Texas Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harry Walter McCutcheon v. Dr. George Beto, Director, Texas Department of Corrections, 327 F.2d 228, 1964 U.S. App. LEXIS 6613 (5th Cir. 1964).

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Opinion

PER CURIAM.

This is an appeal from an order denying a petition for writ of habeas corpus brought pursuant to Title 28 U.S.C.A. § 2254. McCutcheon was tried, and convicted of assault with intent to rob, with two prior felony convictions proved for enhancement. He was sentenced to life in prison.

McCutcheon asserts eight grounds for relief by writ of habeas corpus. He appears to have exhausted his state remedies by appeal to the Texas Court of Criminal Appeals 1 as to only one of these grounds, the failure of the indictment to allege an offense in statutory language. Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L.Ed. 469 (1953) ; Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962). This ground, however was not asserted in the petition for writ of habeas corpus in the district court. It will not be considered here. Of the other grounds alleged, though four were asserted in the district court, *229 there is no showing of exhaustion of state remedies.

The order of the district court is affirmed without prejudice to the petitioner to reassert any of these grounds in the district court after exhausting his state remedies.

Affirmed.

1

. McCutcheon v. State of Texas, Tex.Cr.App., 363 S.W.2d 457 (1962).

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PER CURIAM.

This is an appeal from an order denying a petition for writ of habeas corpus brought pursuant to Title 28 U.S.C.A. § 2254. McCutcheon was tried, and convicted of assault with intent to rob, with two prior felony convictions proved for enhancement. He was sentenced to life in prison.

McCutcheon asserts eight grounds for relief by writ of habeas corpus. He appears to have exhausted his state remedies by appeal to the Texas Court of Criminal Appeals 1 as to only one of these grounds, the failure of the indictment to allege an offense in statutory language. Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L.Ed. 469 (1953) ; Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962). This ground, however was not asserted in the petition for writ of habeas corpus in the district court. It will not be considered here. Of the other grounds alleged, though four were asserted in the district court, *229 there is no showing of exhaustion of state remedies.

The order of the district court is affirmed without prejudice to the petitioner to reassert any of these grounds in the district court after exhausting his state remedies.

Affirmed.

1

. McCutcheon v. State of Texas, Tex.Cr.App., 363 S.W.2d 457 (1962).

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327 F.2d 228, 1964 U.S. App. LEXIS 6613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-walter-mccutcheon-v-dr-george-beto-director-texas-department-of-ca5-1964.

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