Philip G. Yates, Appellant, v. C. E. Breazeale, Superintendent of the Mississippi Statepenitentiary, Appellee.no.24792, 466 F.2d 500 (5th Cir. 1972)

Before GEWIN and COLEMAN, Circuit Judges, and HUGHES, District Judge.

BY THE COURT:

In 1964 and again in 1965 upon his pleas of guilty to murder, trial juries imposed upon Philip G. Yates the penalty of death, see Yates v. State, 251 Miss. 376, 169 So. 2d 792 (1964); 253 Miss. 424, 175 So. 2d 617 (Miss., 1965). The United States Supreme Court denied certiorari, 382 U.S. 931, 86 S. Ct. 321, 15 L. Ed. 2d 342 (1965).

Subsequently, Yates sought habeas corpus relief in the federal courts, culminating in the decision of this Court in Yates v. Breazeale, 5 Cir., 1968, 402 F.2d 113. Yates was there denied all relief except remand for a Witherspoon hearing, Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).

On June 29, 1972, Yates v. Cook, 408 U.S. 934, 92 S. Ct. 2850, 33 L. Ed. 2d 746, the Supreme Court of the United States vacated the judgment of this Court "insofar as it leaves undisturbed the death penalty imposed;" and directed that the case be remanded "to the [United States] Court of Appeals [for the Fifth Circuit] for further proceedings. See Stewart v. Massachusetts, 408 U.S. 845, 92 S. Ct. 2845, 33 L. Ed. 2d 744 (1972)."

Now, in obedience to the mandate of the Supreme Court, this case is remanded to the United States District Court for the Northern District of Mississippi with directions to grant the writ unless the State of Mississippi shall within a reasonable period of time, by appropriate proceedings, resentence Yates to a term prescribed by law but for less than the penalty of death, see Newman v. Wainwright, 5 Cir., 464 F.2d 615 [1972].

So ordered.