Marvin Aubrey Devore v. Frank Blackburn, Warden, Louisiana State Penitentiary ( 1978 )

584 F.2d 52

Marvin Aubrey DEVORE, Petitioner,
v.
Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent.

No. 78-3399.

United States Court of Appeals,
Fifth Circuit.

Nov. 2, 1978.

Marvin A. Devore, pro se.

Morgan J. Goudeau, III, Dist. Atty., Opelousas, La., for respondent.

Appeal from the United States District Court for the Western District of Louisiana.

Before THORNBERRY, GODBOLD and RUBIN, Circuit Judges.

PER CURIAM:

1

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

2

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 Galtieri 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

3

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