Arthur Bailey, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary

Fifth Circuit

Arthur Bailey, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary

597 F.2d 64, 1979 U.S. App. LEXIS 13938

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 15, 1979

Docket78-3306

StatusPublished

This text of 597 F.2d 64 (Arthur Bailey, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Arthur Bailey, Jr. v. Frank Blackburn, Warden, Louisiana State Penitentiary, 597 F.2d 64, 1979 U.S. App. LEXIS 13938 (5th Cir. 1979).

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Opinion

PER CURIAM:

Bailey is a Louisiana state prisoner under a life sentence as a multiple offender. He contends, by a federal habeas corpus petition, that the Louisiana multiple offender statute, La.R.S. 15:529.1, violates the Eighth Amendment. The district court dismissed without prejudice for failure to exhaust Louisiana state remedies. In a series of cases the Louisiana courts have held the statute constitutional, so Bailey contends it is futile for him to present his claim first to the state courts.

The district court relied upon our panel opinion in Rummel v. Estelle, 568 F.2d 1193 (CA5, 1978), which held the Texas habitual criminal statute violated the Eighth Amendment and would appear to require the Louisiana courts to re-examine their position. The panel decision in Rummel was, however, vacated by the court en banc which held the Texas statute constitutional. Rummel v. Estelle, 587 F.2d 651 (CA5, 1978) (en banc). Despite this we think that the Louisiana courts are entitled to re-examine their positions in the light of the en banc decision in Rummel. For example, one of the factors relied upon by the en banc court in sustaining the validity of the Texas statute was Rummel’s eligibility for parole after 12 calendar years. The Louisiana parole structure is materially different. Among other things, it forbids parole to a prisoner serving a life sentence unless his sentence is first commuted by the governor to a term of years. La.R.S. 15:574.4(B) and 15:572. Whether in light of Rummel en banc such a statute is constitutional is a matter for Louisiana courts to address first.

AFFIRMED.

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PER CURIAM:

Bailey is a Louisiana state prisoner under a life sentence as a multiple offender. He contends, by a federal habeas corpus petition, that the Louisiana multiple offender statute, La.R.S. 15:529.1, violates the Eighth Amendment. The district court dismissed without prejudice for failure to exhaust Louisiana state remedies. In a series of cases the Louisiana courts have held the statute constitutional, so Bailey contends it is futile for him to present his claim first to the state courts.

The district court relied upon our panel opinion in Rummel v. Estelle, 568 F.2d 1193 (CA5, 1978), which held the Texas habitual criminal statute violated the Eighth Amendment and would appear to require the Louisiana courts to re-examine their position. The panel decision in Rummel was, however, vacated by the court en banc which held the Texas statute constitutional. Rummel v. Estelle, 587 F.2d 651 (CA5, 1978) (en banc). Despite this we think that the Louisiana courts are entitled to re-examine their positions in the light of the en banc decision in Rummel. For example, one of the factors relied upon by the en banc court in sustaining the validity of the Texas statute was Rummel’s eligibility for parole after 12 calendar years. The Louisiana parole structure is materially different. Among other things, it forbids parole to a prisoner serving a life sentence unless his sentence is first commuted by the governor to a term of years. La.R.S. 15:574.4(B) and 15:572. Whether in light of Rummel en banc such a statute is constitutional is a matter for Louisiana courts to address first.

AFFIRMED.

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597 F.2d 64, 1979 U.S. App. LEXIS 13938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arthur-bailey-jr-v-frank-blackburn-warden-louisiana-state-penitentiary-ca5-1979.

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