Opinion
No. 79-2407.
June 18, 1981.
James C. Bonner, Jr., Athens, Ga., Richard Erwin Shapiro, New Orleans, La. for petitioner-appellant.
John C. Boger, Joel Berger, Jack Greenberg, James M. Nabrit, III, Deborah Fins, New York City, Anthony G. Amsterdam, Stanford, Cal., amicus curiae, for NAACP Legal Defense and Educational Fund, Inc.
Harrison Kohler, Atlanta, Ga., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before INGRAHAM, RONEY and THOMAS A. CLARK, Circuit Judges.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC [2] (Opinion November 26, 1980, 5 Cir., 1980, 631 F.2d 397).
Upon consideration of the petition for rehearing filed by the appellee, we delete the following sentence that appears in 631 F.2d 397 on page 406, column 2, line 10:
The presence of the unconstitutionally vague circumstance also made it possible for the jury to consider several prior convictions of petitioner which otherwise would not have been before it.
The two sentences immediately following the above sentence at page 406 of the opinion are modified to read as follows:
The instruction on the invalid circumstance may have unduly directed the jury's attention to his prior convictions. It cannot be determined with the degree of certainty required in capital cases that the instruction did not make a critical difference in the jury's decision to impose the death penalty.
The petition for rehearing is DENIED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the petition for rehearing en banc is DENIED.