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BURDINE v. JOHNSON

No. 99-21034.

262 F.3d 336 (2001)

Calvin Jerold BURDINE, Petitioner-Appellee, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant.

United States Court of Appeals, Fifth Circuit.

August 13, 2001.

Attorney(s) appearing for the Case

Robert Lee McGlasson, II, Decatur, GA, Mandy Welch, Burr & Welch, Houston, TX, for Petitioner-Appellee.

Julie Caruthers Parsley, Asst. Solicitor General, Stuart Kyle Duncan, Edward Larry Marshall, Austin, TX, for Respondent-Appellant.

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

In this case we consider whether the district court properly granted a Petition for Writ of Habeas Corpus filed by Calvin Jerold Burdine based on state habeas court findings that Burdine's court-appointed attorney slept repeatedly throughout the guilt-innocence phase of his 1984 capital murder trial. The district court concluded "sleeping counsel is equivalent to no counsel at all" and granted relief pursuant to 28 U.S.C. § 2254. A divided...

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