United States Ex Rel. George White, Petitioner-appellant, v. C. Murray Henderson, Warden, Respondent-appellee, 461 F.2d 657 (5th Cir. 1972)

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US Court of Appeals for the Fifth Circuit - 461 F.2d 657 (5th Cir. 1972) June 20, 1972

Richard A. Buckley, Robert Glass, New Orleans, La., for petitioner-appellant.

Jack P. F. Gremillion, Atty. Gen., Jack E. Yelverton, Stacey Moak, Asst. Attys. Gen., Baton Rouge, La., for respondent-appellee.

Before RIVES, AINSWORTH and MORGAN, Circuit Judges.


Appellant was convicted in Louisiana State Court for selling and delivering marihuana in violation of La.R.S. 40:962. He brought this habeas corpus petition under 28 U.S.C. § 2254 raising the issue that he was denied his right to a jury trial since he was convicted in the Louisiana State Court, as provided by the law of that State by a vote of 9 for conviction and 3 for acquittal. See La.Const. art. VII, Sec. 41; La.Code Crim. Pro. art. 782.

On appeal we withheld action on appellant's contention until the Supreme Court of the United States could decide the identical issue in Johnson v. Louisiana. That case has now been decided by the Supreme Court adverse to the contention of appellant and accordingly the denial of habeas corpus was proper in this case though appellant was convicted by less than a unanimous verdict of a jury and by a 9-to-3 verdict as authorized by Louisiana law. See Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972).