Housel v. Head

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 98-8830 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ APR 06, 2001
THOMAS K. KAHN
CLERK
TRACY LEE HOUSEL,

Petitioner-Appellant,

versus

FREDERICK J. HEAD,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 6, 2001)

ON PETITION FOR REHEARING

Before DUBINA, CARNES and COX, Circuit Judges.

PER CURIAM:

Appellant Tracy Lee Housel has petitioned this court for rehearing and has

suggested rehearing en banc. Among other arguments, he points out that the court
misspoke in describing the concurring opinion in Devier v. Zant, 3 F.3d 1445 (11th

Cir. 1993), and that the court did not discuss the large body of state-court authority

concerning the treatment of unadjudicated crimes in capital sentencing. We GRANT

the petition for panel rehearing to make two changes to our opinion, which is

published at 238 F.3d 1289.

First, the sentence “But it has never been accepted in any form by a majority of

this court or the Supreme Court,” found on page 1297, is replaced with “But no

Supreme Court majority has ever accepted it, and two judges of this court espoused

it only in dicta.”

Second, the sentence that begins “Perhaps since last a court visited the question

. . .,” also found on page 1297, should begin “Perhaps since last this court or the

Supreme Court visited the question . . . .”

The petition is otherwise DENIED. No member of this panel nor any other

judge in regular active service on the court having requested that the court be polled

on rehearing en banc, the suggestion of rehearing en banc is also DENIED.

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