436 F.2d 1082
Donald Lee KIRBY, Plaintiff-Appellant,v.Bill S. SUTTON, Court Reporter for Criminal District CourtNo. 5, Dallas County, Texas, Defendant-Appellee.No. 30701 Summary Calendar.**Rule 18, 5 Cir.; See Isbell Enterprises, Incv.Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431F.2d 409.
United States Court of Appeals, Fifth Circuit.
Jan. 18, 1971.

Donald L. Kirby, pro se.
Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.
PER CURIAM:


1
The complaint underlying this appeal was brought under the civil rights jurisdiction of the court, 42 U.S.C.A. section 1983, 28 U.S.C.A. section 1343, against a state court reporter to obtain a copy of the transcript of the state trial wherein petitioner, a state prisoner, was convicted.  It is alleged that the transcript is needed for study so as to enable petitioner to petition for post-conviction relief.


2
There was no showing whatever that petitioner had exhausted available postconviction remedies in the Texas State Courts.  The transcript question presented is properly a part of such state post-conviction remedy, being ancillary thereto.


3
We treat the petition as a petition for the federal writ of habeas corpus and dismiss for failure to exhaust available state remedies.  28 U.S.C.A. section 2254; Stepp v. Beto, 5 Cir., 1968, 398 F.2d 814; Texas v. Payton, 5 Cir., 1968, 390 F.2d 261.  Compare the exhaustion efforts in Wade v. Wilson, 1970, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470.


4
The judgment of the district court dismissing the complaint is affirmed.

