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ASHKER v. LEAPLEY

No. Civ. 90-4130.

798 F.Supp. 590 (1992)

Lewis E. ASHKER, Petitioner, v. Walter LEAPLEY, Warden, South Dakota State Penitentiary, and Roger Tellinghuisen, Attorney General, State of South Dakota, Respondents.

United States District Court, D. South Dakota, S.D.

September 10, 1992.

Attorney(s) appearing for the Case

Roberto A. Lange, Sioux Falls, S.D., for petitioner.

John E. Haak, Asst. Atty. Gen., Pierre, S.D., for respondents.

MEMORANDUM OPINION AND ORDER

JOHN B. JONES, Chief Judge.

Petitioner, Lewis E. Ashker, seeks habeas corpus relief under 28 U.S.C. § 2254. After consideration of the record, briefs, and arguments of counsel, the Court concludes that Petitioner is entitled to relief. Accordingly, his petition shall be granted.

Background

Petitioner was convicted of first degree murder in the death of Jerry Plihal on June

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