512 F2d 1061 Dorrough v. W J Estelle

512 F.2d 1061

Jerry Mack DORROUGH, Petitioner-Appellant,
v.
W. J. ESTELLE, Director, Texas Department of Corrections,
Respondent-Appellee.

No. 73-1881.

United States Court of Appeals, Fifth Circuit.

April 28, 1975.

David M. Ellis, Dallas, Tex. (court appointed), for petitioner-appellant.

Gilbert J. Pena, Asst. Atty. Gen., Austin, Tex., forrespondent-appellee.

Appeal from the United States District Court for the Northern District of Texas, William M. Taylor, Judge.

Before RIVES, WISDOM and MORGAN, Circuit Judges.

BY THE COURT:

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1

The earlier opinion of this Court in this case, reported at 497 F.2d 1007 (5 Cir. 1974), was reversed by the United States Supreme Court. See Estelle v. Dorrough, 1975, ---- U.S. ----, 95 S.Ct. 1173, 43 L.Ed.2d 377. Dorrough's sole contention in the district court and in this Court was that the Texas statute which provided for the dismissal of any pending direct criminal appeal of a defendant who escaped from confinement after sentencing, Vernon's Tex.Code Crim.Proc.Ann., Art. 44.09, denied him the equal protection of the laws. The district court had denied relief, but this Court found the statute invalid, and in its mandate issued August 20, 1974, ordered that, unless the State of Texas provided Dorrough an appeal or a new trial within a reasonable time if an effective appeal were not possible, the district court should issue a writ voiding the detainer warrant the state had lodged against him. The Supreme Court found that the statute did not offend the Equal Protection Clause, and reversed. In its opinion the Court noted that Dorrough sought to raise new contentions before it, but declined to consider them. ---- U.S. at ----, 95 S.Ct. at 1175, 43 L.Ed.2d at 38. None of those other issues is presently before us.

2

It is therefore ordered and adjudged that the earlier judgment of this Court in this cause is hereby vacated and set aside, and that the mandate of this Court issued on August 20, 1974, is hereby recalled, and that in its stead a mandate shall issue forthwith affirming the judgment of the district court denying the petition for a writ of habeas corpus.