McBride v. Estelle, 74-3489
| Decision Date | 07 February 1975 |
| Docket Number | No. 74-3489,74-3489 |
| Citation | 507 F.2d 903 |
| Parties | Mark Allen McBRIDE, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee. Summary Calnedar* *Rule 18, 5 Cir.; see Isbell Enterprises, inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mark Allen McBride, pro se.
John L. Hill, Atty. Gen., Austin, Tex., Randall S. Boyd, Asst. Atty. Gen., Dallas, Tex., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
McBride attacks his confinement as unconstitutional because the sentence imposed exceeds the limits of a plea bargain. The District Court dismissed this allegation without prejudice because it held this issue had never been presented to the Texas courts. 28 U.S.C.A. 2254. McBride contends he has presented this issue to the Texas Court of Criminal Appeals because he submitted a supplemental pro se brief directed expressly to the issue. This brief was supplemental to one filed by counsel on direct appeal from his sentencing. 1 We agree this 'presentation' is enough to satisfy the jurisdictional requirements of 2254, but affirm the District Court. Alonzo v. Estelle, 5 Cir., 1974, 500 F.2d 672.
The only difference between McBride's case and Alonzo's is that McBride's pro se brief in the Texas appellate court presented the plea bargain issue much more forcefully than did Alonzo's state appellate brief. In that case, the issue we sent back to the state court was only presented in a passing reference-- not otherwise set off-- in the text of a brief presenting several issues. We hold this distinction does not warrant a contrary result.
Principles of comity require us to put more emphasis on two factors which are the same in McBride's case as in Alonzo's, (i) the state court did not address itself to the issue in its opinion, and (ii) the state court had no factual record upon which to base any consideration of the issue. 500 F.2d at 673.
Affirmed.
1 McBride's counsel urged the state trial Judge's comments during the trial exceeded the bounds of propriety. McBride now asserts those comments violated his...
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Eggers v. Alabama, 2:13-cv-1460-LSC
...the jurisdictional requirements of § 2254" and interpret this claim liberally. [Reply brief, doc. 107 at 33 (citing McBride v. Estelle, 507 F.2d 903, 904 (5th Cir. 1975).] Thus, according to Eggers, the Court could conduct the deferential analysis of the Rule 32 court's opinion on this clai......
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...may exhaust his state court remedies by presenting the ground in a pro se supplemental brief, relying on McBride v. Estelle, 507 F.2d 903,904 (5th Cir. 1975) (per curiam)),24 distinguished by Hall v. Tucker, No. 3:10cv71/MCR/MD, 2011 WL 7039936, at *13 (N.D. Fla. Oct. 5, 2011) (finding Hitc......
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Messelt v. State of Ala., s. 78-2282
...(5th Cir. 1978); Devore v. Blackburn, 584 F.2d 52 (5th Cir. 1978); Knoxson v. Estelle, 574 F.2d 1339 (5th Cir. 1978); McBride v. Estelle, 507 F.2d 903 (5th Cir. 1975); Alonzo v. Estelle, 500 F.2d 672 (5th Cir. 1974). Thus, the factual sequence of events which we find so offensive and the Du......
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Lamberti v. Wainwright
...we are reluctant to infer from their silence any suggestion that Lamberti's present assertions have been passed upon. See McBride v. Estelle, 5 Cir. 1975, 507 F.2d 903; Alonzo v. Estelle, 5 Cir. 1974, 500 F.2d 672. 7 Moreover, Bryant's result was based on the recognition that the ineffectiv......