438 F2d 1147 Fleming v. Kelly

438 F.2d 1147

Charles FLEMING, Petitioner-Appellant,
v.
Asa KELLY, Director, State Board of Corrections, Atlanta, Georgia, et al., Respondents-Appellees.

No. 26872.

United States Court of Appeals, Fifth Circuit.

February 9, 1971.

Rehearing Denied and Rehearing En Banc Denied April 7, 1971.

Appeal from United States District Court, Southern District of Georgia; Frank M. Scarlett, Senior District Judge.

James E. Yates, III, Savannah, Ga., for petitioner-appellant.

Arthur K. Bolton, Atty. Gen. of Georgia, Mathew Robins, Marion O. Gordon, Asst. Attys. Gen., Atlanta, Ga., for respondents-appellees.

Before TUTTLE and SIMPSON, Circuit Judges, and CASSIBRY, District Judge.

PER CURIAM:

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1

This Court, on May 9th, 1969, entered an order affirming the judgment of the trial court in this state habeas corpus case, 438 F.2d 1147. That judgment was based on the case of Mosley v. Smith (5 Cir.) 404 F.2d 346. That judgment was subsequently suspended by an order of this court pending a proposed rehearing en banc of the companion case, to wit, Salisbury v. Grimes (5 Cir., 1968) 406 F.2d 50. It now appearing that the en banc court in the Salisbury case has been dissolved, the law of this circuit stands as stated in Mosley v. Smith, supra. The judgment and order of this court, dated May 9, 1969 affirming the judgment of the trial court denying relief to appellant Fleming, is hereby reinstated.

2

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

3

The petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

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