We ordered that the case be reheard again, to consider the bearing of the new Act on Burris's petition. 1214, which contains provisions curtailing the scope and availability of federal habeas corpus for prisoners generally and condemned prisoners particularly. The case was heard on December 19, 1995, but before the decision was rendered the President, on April 24 of this year, signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub. However, shortly before Burris was due to be executed, the court granted a stay of execution and decided to hear the case en banc. 1995) (per curiam) (Cudahy, J., dissenting). The panel of this court assigned to Burris's appeal (all appeals in the same capital case go to the panel that heard the first one) affirmed the dismissal of his petition, with one judge dissenting. ยง 2244(b) (as it existed until April 24 of this year). Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides that a second or subsequent petition for habeas corpus may be dismissed without reaching the merits, even if it raises "new and different grounds," if "the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." See also 28 U.S.C. The district court dismissed the petition on the ground that it was an abuse of the writ. In it he alleged a variety of constitutional deficiencies in the second death sentence. Two weeks before his scheduled execution, Burris filed another petition for habeas corpus in the district court. Burris's execution was scheduled for November 29, 1995. State, 642 N.E.2d 961 (Ind.1994), and some months after that a panel of this court affirmed the district court's denial of habeas corpus. Eight months later the state supreme court affirmed the new death sentence, Burris v. In December of the following year, while Burris's appeal from his second death sentence was pending before the state supreme court, he filed a petition for habeas corpus in federal district court, challenging only his conviction. A new sentencing hearing was held, and Burris was again sentenced to death. On appeal from the denial of relief by the trial court, the state's supreme court upheld the conviction but vacated the death sentence. State, 465 N.E.2d 171 (Ind.1984), and Burris then sought postconviction relief in the Indiana courts. The judgment was affirmed by the state's highest court, Burris v. In 1981 Gary Burris, convicted in an Indiana state court of a murder committed in 1980, was sentenced to death. This death-penalty case, twice reargued before the full court, has a tortured history.
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