Warren Eugene Bridge, Petitioner-appellant, v. James A. Lynaugh, Director, Texas Department of Corrections,respondent- Appellee, 863 F.2d 370 (5th Cir. 1989)

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US Court of Appeals for the Fifth Circuit - 863 F.2d 370 (5th Cir. 1989) Jan. 4, 1989

Anthony P. Griffin, Galveston, Tex., for petitioner-appellant.

William C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Texas, Hugh Gibson, District Judge Presiding.

Before POLITZ, WILLIAMS and JONES, Circuit Judges.

ON SUGGESTION FOR REHEARING AND REHEARING EN BANC

(Opinion September 14, 1988, 856 F.2d 712 (5th Cir. 1988))

(On Reh'g November 1, 1988, 860 F.2d 162 (5th Cir. 1988))

PER CURIAM:


We have rejected Bridge's claims for a writ of habeas corpus. We were persuaded in the late hour that in fairness we ought to rest our decision there. We remain convinced that we were correct in our original decision, but with the fullness of time, we are now persuaded that our denial should rest on the absence of legal cause for Bridge's failure to raise the "Franklin" issue at trial. See Franklin v. Lynaugh, --- U.S. ----, 108 S. Ct. 221, 98 L. Ed. 2d 180 (1987); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Selvage v. Lynaugh, 842 F.2d 89 (5th Cir. 1988). To the extent they are contrary, our earlier writings are withdrawn.