732 F.2d 858
James ALLEN, Petitioner-Appellant,
v.
STATE OF ALABAMA, Respondent-Appellee.
No. 82-7290.
United States Court of Appeals,
Eleventh Circuit.
May 21, 1984.
N.P. Callahan, Jr., Birmingham, Ala. (court-appointed), for petitioner-appellant.
Thomas R. Allison, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
ON PETITION FOR REHEARING
(Opinion April 2, 1984, 11 Cir., 1984, 728 F.2d 1384).
Before GODBOLD, Chief Judge, RONEY and SMITH*, Circuit Judges.
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.
Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by designation