Opinion · Court of Appeals for the Fifth Circuit

Fleming v. Kelly

438 F.2d 1147

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1971-02-09
Topic
general

PER CURIAM: This Court, on May 9th, 1969, entered an order affirming the judgment of the trial court in this state habeas corpus ease, 438 F.2d 1147. That judgment was based on the case of Mosley v. Smith (5 *1148Cir.) 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.

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3 opinions
FLEMING v. KELLY,438 F.2d 1147(5th Cir. 1971)
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:
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 (5Page 1148Cir.)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.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
PER CURIAM:
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, (Rule35Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.