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NEWMAN v. HENDERSON

Nos. 73-3393, 73-3670.

496 F.2d 896 (1974)

John NEWMAN, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant. Abraham FRANCIS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant.

United States Court of Appeals, Fifth Circuit.

Rehearings and Rehearings Denied October 7, 1974.

Attorney(s) appearing for the Case

Shirley A. Wimberly, Asst. Dist. Atty., Louise Korns, Barbara Rutledge, Asst. Atty. Gen., New Orleans, La., for respondent-appellant.

John W. Reed, New Orleans, La., for John Newman.

Lolis E. Elie (Court-appointed, not under Act), George M. Strickler, Jr., New Orleans, La., for Abraham Francis.

Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.

Rehearings and Rehearings En Banc Denied October 7, 1974.

DYER, Circuit Judge:

These consolidated appeals raise the question of whether a state prisoner may challenge the validity of his indictment in a federal habeas corpus proceeding when a state rule of procedure prohibits the issue from being untimely raised in state court. We adhere to the principle that a district court cannot disregard the operation of a state waiver rule, absent a showing of actual...

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