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MITCHELL v. GRAY

No. 73-1538.

494 F.2d 684 (1974)

Edward J. MITCHELL, Petitioner-Appellee, v. Frank H. GRAY, Superintendent, Chillicothe Correctional Institution, Respondent-Appellant.

United States Court of Appeals, Sixth Circuit.

Decided March 19, 1974.

Attorney(s) appearing for the Case

Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant; William J. Brown, Atty. Gen., Columbus, Ohio, on brief.

John J. Callahan (Court appointed), Openlander, Callahan & Connelly, Toledo, Ohio, for petitioner-appellee.

Before WEICK, EDWARDS and LIVELY, Circuit Judges.

WEICK, Circuit Judge.

The state has appealed from an order of the District Court granting a writ of habeas corpus to petitioner who had been convicted by a jury in the state court of murder in the first degree, in 1963.

In the prior appeal of this case we modified the order of the District Court by providing that the State of Ohio release petitioner unless within a period of ninety days—

. . . State officials initiate action for a new trial...

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