ON PETITION FOR REHEARING
ANDERSON, JUSTICE, FOR THE COURT:
The original opinion in this case was handed down August 24, 1988, affirming the sentence of death imposed on Willie N. Reddix. Reddix filed a petition for rehearing arguing that his death sentence can not withstand either the Enmund requirements or proportionality review. We find the petition for rehearing well-taken and withdraw the original opinion.
In February 1975, Reddix was indicted by a Harrison County Grand Jury for the capital murder of Arthur Weinberger. He was tried on the indictment in 1975, convicted and sentenced to death. The conviction was reversed and a retrial ordered by this Court under Jackson v. State, 337 So. 2d 1242 (Miss. 1976). Reddix v. State, 342 So. 2d 1306 (Miss. 1977) (Reddix I). He was again convicted of capital murder
and sentenced to death. An appeal was taken to this Court, and we affirmed. Reddix v. State, 381 So. 2d 999 (Miss. 1980) (Reddix II).
Reddix filed a petition for writ of certiorari with the United States Supreme Court, which was denied November 10, 1980, Reddix v. Mississippi, 449 U.S. 986, 101 S. Ct. 408, 66 L.Ed.2d 251 (1980). He then filed an application for leave to file a petition for writ of error coram nobis with this Court which petition was denied without opinion on February 18, 1981.
After denial of state post-conviction relief, Reddix filed a petition for writ of habeas corpus with the United States District Court for the Northern District of Mississippi. That petition was transferred to the Southern District of Mississippi on motion of the court, and on November 10, 1982, that court entered findings of fact and conclusions of law granting the State's motion for summary judgment and dismissing Reddix' petition. On December 7, 1982, petitioner filed a motion for reconsideration and, on January 20, 1983, the district court entered an order vacating its prior opinion and order and granted the writ. Further, it ordered that Reddix be released from custody immediately. Reddix v. Thigpen, 554 F. Supp. 1212 (S. D. Miss. 1983).
The state appealed the order of the district court to the Fifth Circuit Court of Appeals, which affirmed the vacation of death sentence on the basis that Enmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L.Ed.2d 1140 (1982), required a jury finding of intent to kill before a sentence of death could be carried out. The Fifth Circuit further reversed the lower court on the issue of releasing Reddix and remanded the case so all claims could be addressed. Reddix v. Thigpen, 728 F.2d 705 (5th Cir. 1984). On petition for rehearing, the Fifth Circuit entered a second opinion holding that the evidence was sufficient to support a finding that Reddix had the personal intent to kill, but since the jury was not required to find this fact, the sentence should be vacated. Reddix v. Thigpen, 732 F.2d 494 (5th Cir. 1984).
The State petitioned the United States Supreme Court for a writ of certiorari which petition was denied. Thigpen v. Reddix, 469 U.S. 990, 105 S. Ct. 397, 83 L.Ed.2d 331 (1984). On remand to the United States District Court for the Southern District of Mississippi, on December 23, 1985, that court denied Reddix' writ of habeas corpus but ordered a new sentencing hearing.
On February 4, 1986, the State filed a motion to
reconsider under Rule 60 (b), F.R.C.P., based on the decision of the United States Supreme Court in Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L.Ed.2d 704 (1986). The motion was denied.
An appeal was taken to the Fifth Circuit and on November 19, 1986, that court affirmed the denial of the writ of habeas corpus in Reddix v. Thigpen, 805 F.2d 506 (5th Cir. 1986). The earlier opinion of the Fifth Circuit was modified insofar as it required a new jury trial on the issue of the finding of intent to kill required by Enmund v. Florida. supra. The decision stated:
. . since the Mississippi Courts did not find that Reddix had a personal intent to kill, Bullock actually commands exactly the relief that we awarded: allowing the state court to address the question in the first instance. Id. at 699. Our mention of a jury hearing on remand to the state courts should not be taken to require a jury determination of this issue, however. Id., at 700.
805 F.2d at 517. See, Cabana v. Bullock, 474 U.S. 376, 106 S. Ct. 689, 88 L.Ed.2d 704 (1986). This cause is currently before this Court on the state's motion to reinstate the death ...