Opinion
No. 86-1690.
August 16, 1989.
Jeff Rosenzweig, Little Rock, Ark., for appellant.
Jack Gillean, Asst. Atty. Gen., Little Rock, Ark., for appellee.
Appeal from the United States District Court for the Eastern District of Arkansas; Garnett Thomas Eisele, Chief Judge.
Before ROSS, and BRIGHT, Senior Circuit Judges, and WOLLMAN, Circuit Judge.
ORDER
In our earlier decision in this case, we affirmed the district court's denial of Hayes' petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Hayes' petition challenged, among other things, the validity of the death sentence that had been imposed upon him by the Arkansas State Court following his conviction by a jury of capital felony murder. See Hayes v. Lockhart, 852 F.2d 339 (8th Cir. 1988). The United States Supreme Court granted Hayes' petition for certiorari, vacated our judgment, and remanded the case for further consideration in the light of the Court's decision in South Carolina v. Gathers, ___ U.S. ___, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989). See Hayes v. Lockhart, ___ U.S. ___, 109 S.Ct. 3181, 105 L.Ed.2d 691 (1989).
In Gathers, the Supreme Court reaffirmed its decision in Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), that the Eighth Amendment prohibits the state from submitting for the jury's consideration evidence relating to the personal qualities of the victim.
We conclude that there is no significant difference between the comments by the prosecutor in Gathers and those made by the prosecutor in Hayes' trial. Accordingly, having concluded that no additional briefing or argument is warranted, we reverse that portion of the district court's judgment dismissing Hayes' challenge to the sentence of death imposed upon him. We remand the case to the district court with directions to reduce Hayes' punishment to life imprisonment without parole unless the state, within such reasonable time as the district court may fix, commences proceedings to retry the question of punishment.