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TYLER v. PHELPS

No. 79-3093.

622 F.2d 172 (1980)

Gary TYLER, Petitioner-Appellant, v. C. Paul PHELPS, Director, Department of Corrections, and Attorney General of the State of Louisiana, William Guste, Jr., Respondents-Appellees.

United States Court of Appeals, Fifth Circuit.

July 24, 1980.

Attorney(s) appearing for the Case

Jack Peebles, New Orleans, La., for petitioner-appellant.

Abbott J. Reeves, Asst. Dist. Atty., Research & Appeals, Gretna, La., for respondents-appellees.

Before COLEMAN, Chief Judge, and PECK and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge.

Gary Tyler, appellant, was convicted of first degree murder in Louisiana state court and sentenced to die. On appeal, the death penalty1 was vacated but the conviction was affirmed, State v. Tyler, 342 So.2d 574 (La.), cert. denied, 431 U.S. 917, 97 S.Ct. 2180, 53 L.Ed.2d 227 (1977). After unsuccessfully pursuing state habeas corpus, Tyler v. Phelps,

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