IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10986
Summary Calendar
HARUN NASSOR TALIB,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION; THE STATE OF TEXAS;
JANICE WARDER, Judge of the 291st Judicial District,
Defendants-Appellees.
-------------------------------------
HARUN NASSOR TALIB,
Petitioner-Appellant,
v.
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CV-419-T
- - - - - - - - - -
May 20, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 96-10986
- 2 -
Harun Nassor Talib, #689194, appeals from the district
court’s dismissal of his mixed civil rights/habeas corpus action.
Talib argues that the district court abused its discretion in
denying his motion to dismiss from his habeas corpus petition his
unexhausted claim of an unconstitutional search and seizure.
Talib also argues the merits of his habeas corpus claim that his
offense was misclassified as a second degree felony.
We have reviewed the record and the briefs filed by the
parties and conclude that the district court abused its
discretion in implicitly denying Talib leave to dismiss from his
habeas corpus petition his unexhausted claim of an
unconstitutional search and seizure. See Hernandez v. Garrison,
916 F.2d 291, 293 (5th Cir. 1990); Rose v. Lundy, 455 U.S. 509,
520 (1982). The portion of the district court’s judgment denying
Talib’s civil rights claims for damages as barred by Heck v.
Humphrey, 114 S. Ct. 2364 (1994) is AFFIRMED. The portion of the
judgment denying Talib’s motion to dismiss from his habeas
petition his unexhausted claim is VACATED and the case is
REMANDED to the district court for the dismissal of Talib’s
unexhausted habeas claim and for consideration of any remaining
habeas claims.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.