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O'DELL v. NETHERLAND

Nos. 94-4013, 94-4014.

95 F.3d 1214 (1996)

Joseph Roger O'DELL, III, Petitioner-Appellee, v. J.D. NETHERLAND, Warden, Mecklenburg Correctional Center; Ronald J. Angelone, Director, Virginia Department of Corrections; James S. Gilmore, III, Attorney General of the Commonwealth of Virginia; Commonwealth of Virginia, Respondents-Appellants. Joseph Roger O'DELL, III, Petitioner-Appellant, v. J.D. NETHERLAND, Warden, Mecklenburg Correctional Center, Ronald J. Angelone, Director, Virginia Department of Corrections; James S. Gilmore, III, Attorney General of the Commonwealth of Virginia; Commonwealth Of Virginia, Respondents-Appellees.

United States Court of Appeals, Fourth Circuit.

Decided September 10, 1996.

Attorney(s) appearing for the Case

ARGUED: Eugene Paul Murphy, Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellants. Robert S. Smith, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, for Appellee. ON BRIEF: James S. Gilmore, III, Attorney General of Virginia, Linwood T. Wells, Jr., Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellants. Jeffrey M. Eilender, Paul, Weiss, Rifkind, Wharton & Garrison, New York City; Patricia M. Schwarzschild, Hunton & Williams, Richmond, VA; Michele J. Brace, Donald Lee, Virginia Capital Representation Resource Center, Richmond, VA, for Appellee.

Before WILKINSON, Chief Judge, and RUSSELL, WIDENER, HALL, MURNAGHAN, ERVIN, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.

Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON and Judges RUSSELL, WIDENER, WILKINS, NIEMEYER, and WILLIAMS joined. Judge ERVIN wrote an opinion concurring in part and dissenting in part, in which Judges HALL, MURNAGHAN, HAMILTON, MICHAEL, and MOTZ joined.

OPINION

LUTTIG, Circuit Judge:

The United States District Court for the Eastern District of Virginia vacated the death sentence of Joseph Roger O'Dell III on federal habeas,...

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