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Milton D. Lizana v. State of Alabama

Milton D. LIZANA, Appellant, v. STATE OF ALABAMA, Appellee

Lizana v. Alabama, 394 F.2d 512 (5th Cir. 1968)
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Court
Court of Appeals for the Fifth Circuit · U.S. Courts of Appeals
Decided
May 16, 1968
Docket
No. 25505_1
Judges
Tuttle, Simpson, Brewster
Citations
394 F.2d 5121968 U.S. App. LEXIS 6920

Opinion — Per Curiam

PER CURIAM:

The district court denied this habeas corpus petition filed by an Alabama state prisoner for failure “to exhaust his presently available State remedies.” It is true that appellant has failed to appeal from the denial of his coram nobis petition, and the six-month period allowed for appeal from that order of May 21, 1967, had not expired when he filed his petition below on September 25, 1967, or when the court denied that petition. See Allen v. State, 42 Ala.App. 9 , 150 So.2d 399, 401 (1963). Nevertheless, the appeal period has now expired and there is no state remedy presently available to determine the validity of appellant’s claims which concern matters dehors the record. Hence, we hold that the exhaustion requirements of 28 U.S. C.A. § 2254 have been met, since appellant presently has no available state remedy. Bell v. State of Alabama, 5 Cir., 367 F.2d 243 .

We conclude, therefore, that a return and an evidentiary hearing must be held.

The judgment is reversed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1970: 21971: 11972: 21974: 11976: 119702026peak 1970 · 2

Relies on it most ⓘ

  1. Walden v. Mosley312 F. Supp. 855 (N.D. Miss. 1970)
  2. Julius Hairston v. State of Alabama465 F.2d 675 (5th Cir. 1972)
  3. Garrison v. Smith413 F. Supp. 747 (N.D. Miss. 1976)
  4. Harris Percy Wynn v. Samuel L. Smith, Warden, Georgia State Prison, Reidsville, Ga.446 F.2d 341 (5th Cir. 1971)
  5. McArthur Harris v. State of Alabama429 F.2d 1236 (5th Cir. 1970)
  6. Grover Cleveland McDaniel v. Clarence Jones, Sheriff, Dallas County, Texas456 F.2d 1254 (5th Cir. 1972)

Most recent

  1. Garrison v. Smith413 F. Supp. 747 (N.D. Miss. 1976)
  2. Lehman S. Elliott v. State of Alabama493 F.2d 1348 (5th Cir. 1974)
  3. Julius Hairston v. State of Alabama465 F.2d 675 (5th Cir. 1972)
  4. Grover Cleveland McDaniel v. Clarence Jones, Sheriff, Dallas County, Texas456 F.2d 1254 (5th Cir. 1972)
  5. Harris Percy Wynn v. Samuel L. Smith, Warden, Georgia State Prison, Reidsville, Ga.446 F.2d 341 (5th Cir. 1971)
  6. McArthur Harris v. State of Alabama429 F.2d 1236 (5th Cir. 1970)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Allen v. State, 150 So. 2d 399 (Ala. Ct. App. 1963) 41
Cecal Bell v. Alabama, 367 F.2d 243 (5th Cir. 1966) 72

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