NEW ORLEANS -- A former Black Panther cannot be immediately released from state prison while he waits for a third trial on charges that he killed a guard there in 1972, a federal appeals court said Wednesday.

The three-sentence order from the 5th U.S. Circuit Court of Appeals gave attorneys for Albert Woodfox, 61, until Tuesday to answer the state's contention that Woodfox is too dangerous to release.

Defense attorney Chris Aberle said he learned of the order just as he was about to e-mail a quickly written response to the motion filed two hours earlier by Assistant Attorney General Mary E. Hunley.

"We decided to take advantage of the extra time we have to file a more formal response," he said. Because the state filed an emergency motion, he said, a ruling is likely within days of his response.

Aberle said Woodfox could not have been released immediately anyway, because his attorneys were working out where he can stay.

Woodfox is one of the inmates known as the "Angola Three," all former Black Panthers who spent decades in small one-man cells -- not solitary confinement, Attorney General James "Buddy" Caldwell said Wednesday.

On Tuesday, U.S. District Judge James Brady ordered the state to release Woodfox on bail until it either drops charges against him or retries him. He had overturned the murder conviction earlier, finding that the defense attorney at Woodfox's second trial, in 1998, did a poor job.

Woodfox is not the same person he was 35 years ago, Brady wrote Tuesday, describing him as a sickly middle-aged man with an excellent conduct record for more than 20 of his 37 years in prison. Brady's ruling mentions Woodfox suffering from hypertension, diabetes, chronic kidney and cardiovascular problems.

The state's motion said Woodfox "admitted to exercising regularly, doing calisthenics, at least 100 pushups per day, 100-200 sit-ups per day, jumping jacks, stretching, and leg lifts. Sometimes he runs for an hour in the yard. ... This type of physical activity is not typically engaged in by a frail person in poor health."

Caldwell said, "He's healthier than I am."

Hunley filed the state's motion as defense attorney Nick Trenticosta was considering what he said were several offers of a place where Woodfox might stay if he were to be released.

Woodfox had been planning to stay with a niece and her family, but withdrew that proposal after an assistant attorney general notified officials in the neighborhood association, using her personal e-mail account but identifying herself by title.

Woodfox's niece, Rheneisha Robertson, said in a sworn statement that some of her neighbors stopped waving to her family after that -- and more cars than usual began driving by their house, which is in a gated community and at a dead-end for her children's safety. Some cars stopped; some people gawked, she said.

"We became afraid for our children," Robertson's statement said.

Trenticosta said he had never heard of such conduct by a prosecutor. Caldwell said Dana Cummings did what she was supposed to, and was just checking out what Woodfox's lawyers told Brady. "They told a federal judge that he would be well-received in that neighborhood in Slidell, and we knew that couldn't be true," Caldwell said.

Woodfox and one of the other "Angola Three" inmates, Herman Wallace, were convicted of the April 17, 1972, killing of guard Brent Miller. Both were in solitary from 1972 until March, when a magistrate recommended overturning Woodfox's conviction.

The third, Robert King, was convicted of killing a fellow inmate in 1973. He was released in 2001 after his conviction was overturned and he pleaded guilty to the lesser charge of conspiracy to commit murder.

(Copyright 2008 by The Associated Press. All Rights Reserved.)