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DAVIS v. HERRING

No. 83-4421.

800 F.2d 513 (1986)

Stanley L. DAVIS, Petitioner-Appellee, v. Robert HERRING, Sheriff of Lee County, Mississippi and Edwin L. Pittman, Attorney General of the State of Mississippi, Respondents-Appellants.

United States Court of Appeals, Fifth Circuit.

September 26, 1986.

Attorney(s) appearing for the Case

Bill Patterson, Donald G. Barlow, Edwin L. Pittman, Atty. Gen., Jackson, Miss., for respondents-appellants.

Duncan Lott (Court Appointed Co-Counsel) Joe Ray Langston, Booneville, (Court Appointed), Booneville, Miss., for petitioner-appellee.

Before RUBIN, RANDALL, and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The panel has decided, sua sponte, to vacate its earlier opinion in this case,1 and to substitute instead the following.

The habeas corpus petitioner fired his pistol into a tavern, killing the owner. Indicted separately for both murder and the felony of shooting into an occupied building, he was tried on the murder indictment alone. When the jury convicted him only of manslaughter, the State...

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