This case is here, on habeas corpus, for the second time. We had previously remanded it, Pendergraft v. Cook, 5 Cir., 1970, 433 F.2d 969.
Upon remand, the District Court held that the search and seizure involved in this case was not constitutionally invalid, Pendergraft v. Cook, 323 F.Supp. 967 (S.D., Miss., 1971). For the reasons set forth in the reported opinion of the District Court, we affirm its judgment on this issue.
The District Court reaffirmed its earlier decision (not reached on the prior appeal) that the petitioner was constitutionally entitled to be indicted and tried by juries from which women had not been totally and statutorily excluded (See 433 F.2d 970). On this issue, we reverse and direct that the petition be dismissed.
Mrs. Catherine T. Pendergraft, of Jackson, Mississippi, was convicted in the state circuit court of the murder of her husband. On issues no longer in existence, the Mississippi Supreme Court reversed the first conviction and remanded the case for a new trial, Pender-graft v. State, 191 So.2d 830 (Miss., 1966).
The new trial resulted in a second conviction, which was affirmed, Pendergraft v. State, 213 So.2d 560 (Miss., 1968). A direct appeal to the Supreme Court of the United States resulted in dismissal for want of jurisdiction and the denial of certiorari, Pendergraft v. Mississippi, 394 U.S. 715, 89 S.Ct. 1453, 22 L.Ed.2d 671 (1968), rehearing denied, 395 U.S. 941, 89 S.Ct. 1993, 23 L.Ed.2d 459. Mr. Justice Douglas recorded his opinion that probable jurisdiction should be noted.
In both appeals from both convictions to the Supreme Court of Mississippi Mrs. Pendergraft urgently sought reversal because of the total exclusion of women from the grand jury which indicted her and the petit juries which had tried her, see 213 So.2d at 565. The Mississippi Supreme Court specifically declined to reverse on that ground, citing its decision in State v. Hall, 187 So.2d 861 (Miss., 1966).
In Hall, supra, the Court had held that the power to prescribe qualifications for jurors in state courts is vested in the legislature and that it had the power to make reasonable classifications, such as, for the causes stated, validly included the exclusion of women.
Mr. Chief Justice Ethridge dissented on the ground that the total exclusion of women from jury service is an invalid classification, in violation of the due process and equal protection clause of the Fourteenth Amendment, as well as of § 14 of the Mississippi Constitution. The Mississippi Chief Justice pointed out that in 1966 only two states in the Union had statutes completely and absolutely excluding women from jury service, these being South Carolina and Mississippi. The Chief Justice further concluded, however, 187 So.2d at 871, that a holding in line with his views “should be prospective only in its application”.
In 1968, the Mississippi Legislature amended the jury statutes to permit women to serve on grand and petit juries, Chapter 335, Laws of Mississippi of 1968 (amending § 1762 of the Mississippi Code of 1942, Recompiled, as amended).
When the Supreme Court of the United States denied review, Mrs. Pender-graft filed her petition for the writ of habeas corpus in United States District Court. In that petition, she contended, as in the State and Federal Supreme Courts, that she had been twice tried and twice convicted of the crime of murder by a jury composed entirely of members of the male sex, that both the indictment and the convictions were thus *1224in denial of the equal protection and due process of law, additionally contending, as stated in the outset, that her state court trial had been rendered invalid by the admission of evidence illegally seized in violation of federal constitutional rights.
The District Court twice relied upon the reasoning of a Three-Judge District Court in the Middle District of Alabama which had held unconstitutional a similar exclusionary statute of that state, White v. Crook, 251 F.Supp. 401, 408 (1966). The Alabama Three-Judge Court, however, was careful to point out that its decision should be prospective in its application (citing cases) 251 F. Supp. at 409.
This appeal, therefore, encounters these incontrovertible facts: (1) Mrs. Pendergraft was indicted and tried by juries from which women were totally excluded by statute; (2) since 1968 Mississippi has not excluded women from jury service; and (3) there-can be no currently existing justiciable controversy as to the exclusion formerly practiced, unless Mrs. Pendergraft, on collateral attack, is entitled to retrospective application of a finding of unconstitutionality.
This, then, brings us face to face with the unreviewed and unreversed decision of the Supreme Court of Mississippi in State v. Hall, supra, and in Mrs. Pender-graft’s direct appeal, that the decision in White v. Crook, supra, was not binding on it, 187 So.2d at 863, and that there existed a reasonable basis for the legislative classification which excluded women from jury duty in Mississippi state courts.
We also encounter the concession of Mr. Chief Justice Ethridge and of the Alabama Three-Judge Court that any holding of unconstitutionality on this score should be entitled to prospective application only.
Indeed, the Fifth Circuit, in assuming, without deciding, the correctness of the decision in White v. Crook, supra, was of the clear view that it should not be accorded retrospective effect, Juelich v. United States, 5 Cir., 1968, 403 F.2d 523.
We, therefore, conclude that Mrs. Pen-dergraft was not entitled to habeas corpus relief in the Court below and that her petition should have been dismissed, Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1965).
The judgment of the District Court on direct appeal is reversed. On cross appeal it is affirmed. The ease is remanded with directions that the petition for the writ of habeas corpus be dismissed.