Donald Lee Kirby v. Dr. George J. Beto, Director, Texas Department of Corrections

Petitioner was convicted in Texas state court of unlawful possession of heroin and was sentenced to fifteen years imprisonment. The District Court dismissed his petition for habeas corpus relief on the merits. We find, however, that the petition should have been dismissed for failure to exhaust state remedies.

This Court affirmed a prior denial of habeas corpus relief to the appellant. Kirby v. Beto, 426 F.2d 258 (5th Cir. 1970). The grounds for relief set out in the instant habeas petition, however, are different from those alleged in the appellant’s earlier federal petition. In this petition…