327 F. 2d 228 - McCutcheon v. Beto

This is an appeal from an order denying a petition for writ of habeas corpus brought pursuant to Title 28 U.S.C.A. § 2254. McCutcheon was tried, and convicted of assault with intent to rob, with two prior felony convictions proved for enhancement. He was sentenced to life in prison.

McCutcheon asserts eight grounds for relief by writ of habeas corpus. He appears to have exhausted his state remedies by appeal to the Texas Court of Criminal Appeals1 as to only one of these grounds, the failure of the indictment to allege an offense in statutory language. Brown v. Allen, 344 U.S. 443, 447, 73 S. Ct. 397, 97 L.Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962). This ground, however was not asserted in the petition for writ of habeas corpus in the district court. It will not be considered here. Of the other grounds alleged, though four were asserted in the district court, there is no showing of exhaustion of state remedies.

The order of the district court is affirmed without prejudice to the petitioner to reassert any of these grounds in the district court after exhausting his state remedies.

Affirmed.