415 F2d 773 Perry v. E Decker

415 F.2d 773

Julius Dwaine PERRY, Sr., Plaintiff-Appellant,
James E. (Bill) DECKER, Sheriff, Dallas County, Texas, Defendant-Appellee.

No. 27757 Summary Calendar.

United States Court of Appeals Fifth Circuit.

September 5, 1969.

Julius Dwaine Perry, Sr., pro se.

Malcolm Dade, Asst. Dist. Atty., Camille Elliott, Dist. Atty., Dallas, Tex., for appellee.

Before COLEMAN, SIMPSON and CARSWELL, Circuit Judges.


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Pursuant to new Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5th Cir. 1969, 409 F.2d 804, Part I.


This is the appeal of a Texas state prisoner, from a judgment denying his pro se petition for a writ of habeas corpus. We affirm.


The appellant is presently confined by authority of convictions for murder with malice and passing a worthless check. His direct appeals are pending in the Texas Court of Criminal Appeals.


In his pro se brief filed in this appeal, the appellant states that the only issue presented for review is as to the constitutionality of Article 11.07 of the Texas Code of Criminal Procedure. That statute provides post-indictment and post-conviction habeas corpus remedies. See Texas v. Payton, 5th Cir. 1968, 390 F.2d 261; Ex parte Young, Tex.Cr.App. 1967, 418 S.W.2d 824.


The district court held that federal habeas corpus relief is unavailable to the appellant because he has not exhausted his available state remedies, particularly, his remedy of direct appeal. We agree. 28 U.S.C. § 2254; Martinez v. Craven, 9th Cir. 1968, 397 F.2d 256; see Texas v. Payton, supra; Bruce v. Beto, 5th Cir. 1968, 396 F.2d 212; United States ex rel. Heirens v. Pate, 7th Cir. 1967, 401 F.2d 147.


The judgment of the district court denying the writ of habeas corpus without prejudice is hereby affirmed.