James R. Stringer, Petitioner-appellant, v. Lee Roy Black, Commissioner, Mississippi Department Ofcorrections, et al., Respondents-appellees, 979 F.2d 38 (5th Cir. 1992)

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US Court of Appeals for the Fifth Circuit - 979 F.2d 38 (5th Cir. 1992) Nov. 24, 1992

James E. Ostgard, Minneapolis, Minn. (court-appointed), Kenneth J. Rose, Durham, N.C. (court-appointed), Dennis Sweet, Jackson, Miss. (court-appointed), for petitioner-appellant.

Marvin L. White, Jr., Felicia C. Adams, Asst. Attys. Gen., Jackson, Miss., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Mississippi; William H. Barbour, Jr., Judge.


Before HIGGINBOTHAM, DAVIS and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The holding of this court in Stringer v. Jackson, 909 F.2d 111 (1990) has been reversed and the cause has been remanded to this court for further proceedings in conformity with the opinion of the Supreme Court. --- U.S. ----, 112 S. Ct. 1130, 117 L. Ed. 2d 367.

Accordingly, our opinion in Stringer v. Jackson, 862 F.2d 1108 (1988), is modified by deleting therefrom the entirety of sub-part III., C. Aggravating Circumstances, and the judgment of the District Court is VACATED insofar as it holds that there was no constitutional error in the jury's use of the "especially heinous, atrocious, or cruel" aggravating circumstance.

This case is REMANDED to the District Court with instructions to issue the writ of habeas corpus unless the State of Mississippi initiates appropriate proceedings in state court within a reasonable time after the issuance of our mandate. In all other respects, the judgment of this court in 862 F.2d 1108 and the judgment of the District Court are REAFFIRMED.