520 F2d 1406 Loftis v. W J Estelle

520 F.2d 1406

Edwin L. LOFTIS, Petitioner-Appellant,
v.
W. J. ESTELLE, Director, Texas Department of Corrections,
Respondent-Appellee.

No. 73-3968.

United States Court of Appeals,
Fifth Circuit.

Oct. 10, 1975.

Donald A. Smyth, Staff Counsel, Texas Dept. of Corrections, Brazoria, Tex., for petitioner-appellant.

Thomas H. Routt, Sarah Shirley, Joe B. Dibrell, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas, Sarah Tilghman Hughes, Judge.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion July 9, 1975, 5 Cir., 1975, 515 F.2d 872).

Before RIVES, GEWIN and GOLDBERG, Circuit Judges.

PER CURIAM:

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1

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

RIVES, Circuit Judge (dissenting):

2

I respectfully dissent from the denial of the petition for rehearing for reasons stated in my dissent from the original opinion.

3

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

4

BROWN, Chief Judge, with whom GODBOLD, Circuit Judge, joins (dissenting).

5

I dissent to the failure of the Court to grant rehearing en banc for the reasons found in Judge Richard T. Rives' dissent. Additionally, on the statements appearing in the Court's opinion, reversal seems indicated on either one or both grounds in Fitzgerald v. Estelle, 5 Cir., 505 F.2d 1334.