Opinion
Misc. No. 1430.
August 19, 1969.
Bennie Earnest Wilson, pro se.
Crawford Martin, Atty. Gen., Austin, Tex., for respondent.
Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
The district court denied appellant's petition for a writ of habeas corpus without an evidentary hearing and without answer by respondent, and it denied leave to appeal in forma pauperis on the ground that the petition was frivolous. The matter is before this court on petition for a certificate of probable cause and leave to appeal in forma pauperis.
It appears from the petition itself and from an earlier decree of the Texas state trial court denying habeas corpus that the petition asserts grounds for relief which are not shown to have been determined in the state habeas proceedings. Since the petitioner has not exhausted his state remedies we need not decide whether the federal habeas court erred in failing to hold an evidentiary hearing and failing to require an answer from the respondent.
The dismissal of the petition is affirmed without prejudice to the right of appellant to seek relief in the state courts. E.g. Hill v. Beto, 5th Cir. 1969, 412 F.2d 831.