John A. Henninger v. Louie L. Wainwright

467 F.2d 217, 1972 U.S. App. LEXIS 7597

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 11, 1972
• Docket: 72-2124
• Status: Published

Opinion

PER CURIAM:

John A. Henninger appeals from an order of the district court denying his petition for the writ of habeas corpus. We dismiss the appeal as moot.

The appellant was convicted of first degree murder 'hnd was assessed the death penalty by the jury. In his ha-beas petition filed below he alleged that the voir dire examination of prospective jurors was conducted in such manner as to select only those who would not recommend mercy. The district court dismissed the petition without prejudice, finding that the issue had not first been presented to the state court. The record reveals this finding to be correct.

While this appeal has been pending in this Court, the State of Florida, prompted by the United States Supreme Court decision in Furman v. Georgia, 1972, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, commuted all death penalties to life imprisonment. Florida Statutes 72-118. Therefore the appeal is rendered moot.

In his petition below the appellant also contended that the trial court erred in allowing into evidence prejudicial photos of the deceased. Appellant abandoned this issue on appeal. He would not, however, be entitled to relief on this issue. The admission of the photographs presents no federal constitutional question. Alligood v. Wainwright, 5th Cir. 1971, 440 F.2d 642; Williams v. Wainwright, 5th Cir. 1970, 427 F.2d 921.

The appeal is dismissed.

Dismissed.