
    STATE ex rel. Thomas Lee WARD v. Hilton BUTLER, Warden Louisiana State Penitentiary.
    No. 88-KP-3018.
    Supreme Court of Louisiana.
    Dec. 30, 1988.
   In re Thomas Lee Ward, applying for stay of execution; to the Criminal District Court, Parish of Orleans, No. 297-030, Section I.

Granted. This court's October 25, 1988, 532 So.2d 162, stay of execution and its ordering an evidentiary hearing concerning relator’s contention that he is mentally retarded and that imposition of the death penalty upon a person who was mentally retarded at the time of his offense constitutes impermissible crule and unusual punishment, was responsive to realtor’s request that this Court remand the matter to the district court for an evidentiary hearing upon the disposition of Penry v. Lynaugh, 87-6177, U.S. Supreme Court, cert. granted, 6/30/88, — U.S. -, 108 S.Ct. 2896, 101 L.Ed.2d 930.

Inasmuch as Penry v. Lynaugh is still pending in the United States Supreme Court and has not yet been decided, the warrant of December 20,1988 commanding relator’s execution on January 20, 1989 is vacated and set aside.

MARCUS, WATSON and COLE, JJ., would deny.  