dissenting:
I dissent from the affirmance.
Appellant-petitioner Pruitt is now serving a life sentence for rape of an eight-year-old girl. His present pro se petition with attached affidavits makes out a claim that appellant has received new information that suggests that his conviction may have rested on incorrect testimony from the alleged victim of the sexual assault. Thus, a miscarriage of justice, perhaps of constitutional magnitude, may have occurred.
In my judgment, the petition and the attached letters and affidavits justify a hearing to examine the merits of the claim. True, taken at face value, the letter from the victim and the affidavits of Morris and Goff concerning the victim’s statement that Pruitt was innocent, would not justify Pruitt’s release under a writ of habeas corpus. But this pro se petition ought to be deemed sufficient to justify further inquiry.1
I would remand the case to the district court with instructions to appoint counsel for Pruitt, as this court did for Pruitt on the present appeal. Pruitt should be permitted to adduce additional evidence by affidavit or deposition to clarify the statements of his “witnesses.” The state should be given an opportunity to reply. At its discretion the trial court may wish to hear oral testimony bearing on the issue. From such an expanded record, the district court could then make a more informed ruling.
. Here, certainly the alleged change of testimony of the rape victim ought to be examined. Her trial identification may be open to question as no trial transcript of her testimony remains in existence. Pruitt v. Hutto, 574 F.2d 956, 957 (8th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978).