OpenJurist

509 F2d 121 Johnson v. C Henderson

509 F.2d 121

Frank T. JOHNSON, Petitioner-Appellant,
v.
C. Murray HENDERSON, Warden, Louisiana State Penitentiary,
Respondent-Appellee.

No. 74--3198 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

March 7, 1975.
Rehearing Denied March 27, 1975.

Frank T. Johnson, pro se.

William J. Guste, Jr., Atty. Gen., Baton Rouge, La., Barbara B. Rutledge, Asst. Atty. Gen., John Baker, Joseph B. Tosterud, Jr., Asst. Dist. Attys., New Orleans, La., for respondent-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BELL, SIMPSON and MORGAN, Circuit Judges.

PER CURIAM:

1

Appellant, a male Louisiana state prisoner, sought federal habeas relief on the contention that the Louisiana statute governing service by females on its juries was unconstitutional. His contention has now been sustained, Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, (1975), but to no avail to him since the ruling has been given prospective application only. Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790, (1975). In addition, there is no merit in the further contention of ineffective counsel.

2

We cannot pass on the additional assignment of error that there was no evidence to sustain the verdict of guilty. Cf. Thompson v. Louisville, 1960, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654; Garner v. Louisiana, 1961, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207. The trial transcript is not a part of the record before us. Whether it was ever before the district court is problematical. This argument must be considered in the district court on the state trial record or on a record made in an evidentiary hearing in the district court.

3

Affirmed in part; vacated and remanded in part with direction.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409