John Eldon Smith, or Anthony Isalldo MacHetti v. Charles Balkcom, Warden, Georgia State Prison

ON PETITIONS FOR REHEARING

Before HILL, Circuit Judge, SMITH ** , Judge, and, HENDERSON, Circuit Judge.

We hereby modify the panel opinion, 660 F.2d 573 (5th Cir. 1981), to delete the paragraph appearing on page 585 and beginning “The equal protection aspect ...” and add in lieu thereof the following:

Smith further attacks the constitutionality of the application of Georgia’s death penalty on equal protection grounds. Smith has proffered evidence undertaking to show that “racial factors [are] evident in Georgia capital sentencing patterns.” Brief for Petitioner-Appellant at 40. This evidence…