Marvin Aubrey Devore v. Frank Blackburn, Warden, Louisiana State Penitentiary

584 F.2d 52, 1978 U.S. App. LEXIS 8006

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 2, 1978
• Docket: 78-3399
• Status: Published

Opinion

PER CURIAM:

The motion of petitioner for C.P.C. and for leave to appeal I.F.P. is granted and the case shall be docketed.

In the federal habeas court petitioner raised the issue of ineffective counsel. The court decided several merits issues against petitioner and denied his petition, but it did not advert to the ineffective counsel issue. We are unable to determine from the record whether petitioner exhausted this issue in state court. In these circumstances Gal-tieri v. Wainwright, 582 F.2d 348, decided by this court en banc October 23, 1978, requires us to vacate and remand to the district court for it to determine whether petitioner exhausted the ineffective counsel issue in state court and for entry of a fresh decree in light of Galtieri. 1

VACATED and REMANDED.

1 . It is appropriate to dispose of this case summarily. See Groendyke Transportation, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158.