John James Turner v. Louie L. Wainwright, Director, Division of Corrections, State of Florida

594 F.2d 43, 1979 U.S. App. LEXIS 15896

Opinion

On Petition for Rehearing

BY THE COURT:

Ruling on this petition was held pending a review by the en banc Court of the panel opinion in Stinson v. State of Alabama, 5 Cir. 1977, 545 F.2d 485. The en banc opinion, reported at 582 F.2d 377, remanded Stinson to the panel for consideration in light of the decision in Galtieri v. Wainwright, 5 Cir. 1978, 582 F.2d 348 (en banc).

Having applied the Gaitieri standards to the matter before us, we deny the petition. Turner’s petition to the district court for the writ of habeas corpus was a “mixed” one, containing both exhausted and unexhausted issues.

The policy in this circuit is that a federal district court must dismiss without prejudice a “-mixed”, petition for a writ of . habeas corpus. Gaitieri at 355.

REHEARING DENIED.