JAMES ALLEN, PETITIONER-APPELLANT,
v.
STATE OF ALABAMA, RESPONDENT-APPELLEE
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The court granted in part and denied in part the petition for rehearing, allowing an out-of-time appeal on the issue of jury communication.
Petitioner sought an out-of-time appeal, with counsel conceding nine previously rejected issues and focusing on an alleged unconstitutional communicat…
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BY THE COURT:
Treating petitioner’s letter filed April 16, 1984 as a petition for rehearing, it is DENIED in part and GRANTED in part.
In the oral argument of this case counsel stated to the court that if petitioner were granted an out-of-time appeal in state court the only issue to be pressed in that appeal would concern an unconstitutional communication by the trial judge with the jury. We held that petitioner was entitled to the out-of-time appeal and, because he is indigent, to a transcript of his trial as an incident thereto.
The concession by counsel was properly made with respect to some nine other issues that had been raised in a state coram nobis proceeding and found by the trial court to be without merit, which determination was affirmed by the Alabama Court of Criminal Appeals. The same issues were presented to the federal district court, which also found them to be without merit, and we affirmed this decision in the present appeal. These nine issues would not be available to be relitigated in an out-of-time merits appeal that, in a reversal of the usual sequence, comes after two judicial systems have found them without merit on collateral attack.
The attention of all participants in this case was focused, however, on the alleged unconstitutional communication with the jury and the nine other issues described above. We agree that petitioner should not be barred from presenting in his out-of-time merits appeal additional issues, if any, that might be revealed by an examination of the trial transcript, which has not yet been available to him.
The petition for rehearing is GRANTED in part and DENIED in part.
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Citator
Cited By
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Allen v. State OF Ala., 735 F.2d 1276 (11th Cir. 1984)…BY THE COURT: Respondent’s motion to revise our order, 732 F. 2d 858, denying rehearing in this case is GRANTED. The language in the second paragraph, “[w]e held that petitioner was entitled to the out-of-time appeal and, because he is indigent, to a transcript of his trial as an incident thereto,” is deleted and the…
Authorities Cited
- Allen v. State OF Ala., 728 F.2d 1384 (11th Cir. 1984)