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YARBROUGH v. JOHNSON

No. 07-10.

520 F.3d 329 (2008)

Robert Stacy YARBROUGH, Petitioner-Appellant, v. Gene M. JOHNSON, Director, Virginia Department of Corrections, Respondent-Appellee.

United States Court of Appeals, Fourth Circuit.

Decided: March 17, 2008.

Attorney(s) appearing for the Case

ARGUED: F. Nash Bilisoly, IV, Vandeventer & Black, L.L.P., Norfolk, Virginia, for Appellant. Matthew P. Dullaghan, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee. ON BRIEF: Trey R. Kelleter, Vandeventer & Black, L.L.P., Norfolk, Virginia; Jennifer L. Givens, Virginia Capital Representation Resource Center, Charlottesville, Virginia, for Appellant. Robert F. McDonnell, Attorney General, Jerry P. Slonaker, Senior Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellee.

Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER and Senior Judge HAMILTON joined.

OPINION

NIEMEYER, Circuit Judge:

A jury in Mecklenburg County, Virginia, convicted Robert Yarbrough of the 1997 capital murder and robbery of Cyril Hamby, and sentenced him to death. The Supreme Court of Virginia vacated his sentence because of an erroneous jury instruction. On remand, a second jury sentenced Yarbrough to death...

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