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OCHOA v. ESTELLE

No. SA-73-CA-132.

445 F.Supp. 1076 (1976)

Robert S. OCHOA v. W. J. ESTELLE, Jr.

United States District Court, W. D. Texas, San Antonio Division.

December 1, 1976.

Attorney(s) appearing for the Case

James R. Gillespie, Inc., A Professional Corp., James R. Gillespie, San Antonio, Tex., for petitioner.

Mark L. Perlmutter, Asst. Atty. Gen., Austin, Tex., for respondent.

MEMORANDUM OPINION

SUTTLE, District Judge.

Petitioner's claim for relief from a forty year sentence imposed by the State of Texas poses the following question:

Does the Double Jeopardy Clause of the Fifth Amendment bar a reindictment, a second trial, and a conviction based on a count in the second indictment, where, after a jury had been impaneled and sworn at the first trial, the state had abandoned an identical count in a previous indictment based...

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