470 F2d 1370 Alexander v. C Henderson

470 F.2d 1370

Russell ALEXANDER, Petitioner-Appellant,
v.
C. Murray HENDERSON, Warden, Louisiana State Penitentiary,
Respondent-Appellee.

No. 71-3149.

United States Court of Appeals,
Fifth Circuit.

Jan. 12, 1973.

Warren D. Rush, Lafayette, La., for petitioner-appellant.

Knowles M. Tucker, Dist. Atty., New Iberia, La., William J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., for respondent-appellee.

Before WISDOM, GOLDBERG and CLARK, Circuit Judges.

BY THE COURT:

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1

Petitioner's appeal from a denial of habeas relief was denied by this Court on June 9, 1972, 459 F.2d 1391. On certiorari to the Supreme Court, our judgment was vacated "insofar as it leaves undisturbed the death penalty imposed" and the cause was remanded to this Court for further proceedings. Alexander v. Henderson, 409 U.S. 1032, 93 S.Ct. 538, 34 L.Ed.2d 482. See Stewart v. Massachusetts, 1972, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744.

2

In Furman v. Georgia, 1972, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 and its companion cases, the Supreme Court held that the death penalty as imposed under the Georgia and Texas statutes constitutes cruel and unusual punishment in violation of the Eighth Amendment. Accordingly, we remand this case to the district court for reconsideration in light of Furman v. Georgia, supra. See Williams v. Henderson, 5 Cir. 1972, 465 F.2d 995; Newman v. Wainwright, 5 Cir. 1972, 464 F.2d 615.