John James Turner, Petitioner-appellant, v. Louie L. Wainwright, Director, Division of Corrections,state of Florida, Respondent-appellee, 594 F.2d 43 (5th Cir. 1979)

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U.S. Court of Appeals for the Fifth Circuit - 594 F.2d 43 (5th Cir. 1979) March 27, 1979

Before COLEMAN, GODBOLD and TJOFLAT, Circuit Judges.

On Petition for Rehearing


Ruling on this petition was held pending a review by the En banc Court of the panel opinion in Stinson v. State of Alabama, 5 Cir. 1977, 545 F.2d 485. The En banc opinion, reported at 582 F.2d 377, remanded Stinson to the panel for consideration in light of the decision in Galtieri v. Wainwright, 5 Cir. 1978, 582 F.2d 348 (en banc).

Having applied the Galtieri standards to the matter before us, we deny the petition. Turner's petition to the district court for the writ of habeas corpus was a "mixed" one, containing both exhausted and unexhausted issues.

The policy in this circuit is that a federal district court must dismiss without prejudice a "mixed" petition for a writ of habeas corpus. Galtieri at 355.