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Maurice Sanford and Jim Johnson v. Terrell Don Hutto, Commissioner, Arkansas Department of Correction , 523 F.2d 1383 ( 1975 )


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  • 523 F.2d 1383

    Maurice SANFORD and Jim Johnson, Appellees,
    v.
    Terrell Don HUTTO, Commissioner, Arkansas Department of
    Correction, Appellant.

    Nos. 75-1478, 75-1484.

    United States Court of Appeals,
    Eighth Circuit.

    Submitted Oct. 14, 1975.
    Decided Oct. 22, 1975.

    Jack T. Lassiter, Asst. Atty. Gen., Little Rock, Ark., made argument for Hutto, etc.

    Patrick D. O'Rourke, Atty. for Inmates, Arkansas Dept. of Correction, Pine Bluff, Ark., made argument for Sanford, and others.

    Before CLARK, Associate Justice,* and LAY and ROSS, Circuit Judges.

    PER CURIAM.

    1

    This is an appeal by the Commissioner of the Arkansas Department of Correction from a final judgment granting habeas corpus relief to Maurice Sanford and Jim Johnson. Sanford and Johnson cross appeal from an order denying their motion to release pending retrial.

    2

    In October, 1969, Sanford and Johnson, two black men, were convicted by jury of first degree rape in St. Francis County, Arkansas. After exhausting state remedies, petitioners filed this habeas corpus action claiming purposeful and systematic exclusion of black persons from the jury venire from which the jury panel that convicted them was drawn. The United States District Court for the Eastern District of Arkansas1 held that petitioners established a prima facie case of jury discrimination which the Commissioner failed to rebut. Accordingly, the petitioners' convictions were vacated and the State of Arkansas was granted leave to retry them. Petitioners' motion for release on their own recognizance pending appeal was denied.

    3

    We agree with Judge Henley and affirm on the basis of his well-reasoned opinion.2

    4

    The State of Arkansas is given thirty days from the mandate of this court within which to retry the petitioners. If for any reason the State fails to commence the retrial within the allotted period or any extension granted by the trial court, the trial court shall immediately order the petitioners released.

    5

    The mandate of this court shall issue forthwith.

    *

    Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation

    1

    The Honorable J. Smith Henley, District Judge

    2

    The opinion of the district court is reported at 394 F. Supp. 1278 (E.D.Ark.1975)