Notice: Eighth Circuit Rule 28a(k) Governs Citation of Unpublished Opinions and Provides That No Party May Cite an Opinion Not Intended for Publication Unless the Cases Are Related by Identity Between the Parties or the Causes of Action.gerald Leroy Gallup, Appellant, v. John Thalacker, Warden of Iowa Men's Reformatory, Appellee, 39 F.3d 1184 (8th Cir. 1994)

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U.S. Court of Appeals for the Eighth Circuit - 39 F.3d 1184 (8th Cir. 1994) Submitted: Oct. 10, 1994. Filed: Nov. 10, 1994

Before McMILLIAN, Circuit Judge, McKAY,*  Senior Circuit Judge, and BOWMAN, Circuit Judge.


During the pendency of this appeal, the respondent filed a motion to remand or dismiss for failure to exhaust state remedies. The basis of the motion is that petitioner has filed a state post-conviction action attacking the underlying conviction in the case we here decide but on different grounds than the exhausted issue before us. Before final submission to this panel, the petitioner dismissed the petition pending in state court.

Because the voluntary dismissal of the state action cures the lack of exhaustion, we deny the motion to remand or dismiss and proceed to the merits of this appeal.

Petitioner was convicted in state court of delivery of lysergic acid diethylamide under Iowa Code Sec. 204.401(i) (b) (5) and for failing to have a drug tax stamp under Iowa Code chapter 421 A. 12.1  He received consecutive sentences for these crimes. The Iowa Supreme Court rejected a double jeopardy argument on the ground that although one crime was a lesser included offense of the other, the legislature intended to authorize multiple punishments. State v. Gallup, 500 N.W.2d 437 (Iowa 1993).

In his federal habeas corpus petition, the District Court rejected the same argument on the ground that the federal courts are bound by the state determination that its legislature intended multiple punishments. Missouri v. Hunter, 459 U.S. 359, 368-69 (1983).

Having carefully considered petitioner's arguments and the District Court order, we find no error in the District Court's analysis or determination. Because an opinion would add nothing to existing precedent, the judgment of the District Court is affirmed without further discussion.

Affirmed. See 8th Cir. R. 47B.


The HONORABLE MONROE G. McKAY, Senior United States Circuit Judge for the United States Court of Appeals for the Tenth Circuit, sitting by designation


Now Iowa Code Sec. 124 and ch. 453B (1993) respectively