Donald Lee Kirby v. Bill S. Sutton, Court Reporter for Criminal District Court No. 5, Dallas County, Texas
Donald Lee KIRBY, Plaintiff-Appellant, v. Bill S. SUTTON, Court Reporter for Criminal District Court No. 5, Dallas County, Texas, Defendant-Appellee
Opinion
*1083 PER CURIAM:
The complaint underlying this appeal was brought under the civil rights jurisdiction of the court, 42 U.S. C.A. section 1983, 28 U.S.C.A. section 1343 , against a state court reporter to obtain a copy of the transcript of the state trial wherein petitioner, a state prisoner, was convicted. It is alleged that the transcript is needed for study so as to enable petitioner to petition for post-conviction relief.
There was no showing whatever that petitioner had exhausted available post-conviction remedies in the Texas State Courts. The transcript question presented is properly a part of such state post-conviction remedy, being ancillary thereto.
We treat the petition as a petition for the federal writ of habeas corpus and dismiss for failure to exhaust available state remedies. 28 U.S.C.A. section 2254 ; Stepp v. Beto, 5 Cir., 1968, 398 F.2d 814 ; Texas v. Payton, 5 Cir., 1968, 390 F.2d 261 . Compare the exhaustion efforts in Wade v. Wilson, 1970, 396 U.S. 282 , 90 S.Ct. 501 , 24 L.Ed.2d 470 .
The judgment of the district court dismissing the complaint is affirmed.
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