dissenting.
In my view, the decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), requires that the case sub judice be decided on the merits rather than that the appeal be dismissed as held by the majority. I, therefore, respectfully dissent.
I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.