Smith v. State of Oklahoma

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
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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that this opinion should not be published and is not precedent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.