Smith v. State of Oklahoma

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 96-50162 USDC No. W-96-CV-36 __________________

BOBBY JOE SMITH,

Petitioner-Appellant,

versus

STATE OF OKLAHOMA et al.,

Respondents-Appellees.

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Appeal from the United States District Court for the Western District of Texas

June 14, 1996 Before HIGGINBOTHAM, DUHE’ and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Bobby Joe Smith requests a certificate of probable cause

(CPC) to appeal. The district court dismissed Smith's habeas

corpus petition for failure to exhaust state remedies, but did

not specify which state or what remedies were to be exhausted.

He was not given an opportunity in the district court to show, as

he has alleged in this court, that attempting to exhaust state

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-50162 -2-

remedies would be futile. See 28 U.S.C. § 2254(b); Deters v.

Collins, 985 F.2d 789, 795 n.16 (5th Cir. 1993). Smith’s request

for CPC is GRANTED. The judgment of the district court is

VACATED, and this action is REMANDED to the district court to

determine what, if any, remedies are available to Smith in Texas

and/or Oklahoma, and whether his attempt to exhaust state

remedies would be futile.

VACATED and REMANDED.