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SMITH v. ESTELLE

No. CA3-77-0544-F.

445 F.Supp. 647 (1977)

Ernest Benjamin SMITH v. W. J. ESTELLE, Jr., Director, Texas Department of Correction, and Warden, Ellis Unit, Texas Department of Corrections.

United States District Court, N. D. Texas, Dallas Division.

New Trial Denied March 27, 1978.

Attorney(s) appearing for the Case

John F. Simmons, Dallas, Tex., Joel Berger, New York City, Anthony G. Amsterdam, Stanford, Cal., for petitioner.

Joe B. Dibrell, Jr., Asst. Atty. Gen., Chief, Enforcement Div., Anita Ashton, Asst. Atty. Gen., Austin, Tex., for respondents.

MEMORANDUM OPINION

ROBERT W. PORTER, District Judge.

During the early morning hours of September 28, 1973, Ernest Benjamin Smith and Howie Ray Robinson entered a Schepps Grocery in Dallas County, Texas, intending to rob the store. Robinson placed a package of lunch meat and a jar of mustard on the counter while Smith held a gun on the cashier and said "This is a holdup". The cashier moved suddenly as if to reach for something and Smith yelled either "Get...

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