Rosario Joseph Dispensa v. James A. Lynaugh, Director, Texas Department of Corrections, Respondent

ON PETITION FOR REHEARING

(Opinion Sept. 4, 1987, 5th Cir., 1987, 826 F.2d 375).

ALVIN B. RUBIN, Circuit Judge:

Rosario Joseph Dispensa was convicted of burglary of a habitation with intent to commit rape and sentenced to fifteen years imprisonment. The district court granted his writ of habeas corpus on the basis that the police’s use of an overly suggestive out-of-court identification procedure made the rape victim’s subsequent in-court identification unreliable. The State of Texas appealed, and, in a prior opinion, we concluded that because Dispensa had introduced new evidence at the federal…