Larry K. Barnard v. C. Murray Henderson, Warden, Louisiana State Penitentiary

531 F.2d 1332, 1976 U.S. App. LEXIS 8891

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 24, 1976
• Docket: 75--4338
• Status: Published

Opinion

531 F.2d 1332

Larry K. BARNARD, Petitioner-Appellant,
v.
C. Murray HENDERSON, Warden, Louisiana State Penitentiary,
Respondent-Appellee.

No. 75--4338 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

May 24, 1976.

Jennings B. Miller, Lake Charles, La., for petitioner-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Baton Rouge, La., A. J. Fazzio, Lake Charles, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before GODBOLD, DYER and CLARK, Circuit Judges.

PER CURIAM:

Pursuant to a judgment rendered by this Court on June 12, 1975,1 Barnard was retried by the State of Louisiana within the 90 days ordered by the district court and convicted by a jury on October 10, 1975. At his second trial he was permitted to have an independent ballistics examination and the witness who was not permitted to testify in his first trial was not barred from testifying. Barnard now attacks his present conviction and sentence in the district court without having exhausted his state remedies either by habeas or appeal, contending that the state should have released and re-arrested him before retrying him. We find this contention utterly without merit. The judgment is

AFFIRMED.

* Rule 18, 5 Cir.; see, Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I

1 Barnard v. Henderson, 5 Cir. 1975, 514 F.2d 744