Duane W. Sanders, Appellee, v. Harold W. Clarke, Warden, Nebraska State Prison, Appellant, 867 F.2d 488 (8th Cir. 1989)

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U.S. Court of Appeals for the Eighth Circuit - 867 F.2d 488 (8th Cir. 1989)

Submitted Feb. 11, 1989. Decided Feb. 16, 1989

On Remand from the Supreme Court of the United States.

Lynne R. Fritz, Asst. Atty. Gen., Lincoln, Neb., for appellant.

Thomas V. Van Robays, Omaha, Neb., for appellee.

Before McMILLIAN, ARNOLD and FAGG, Circuit Judges.

ARNOLD, Circuit Judge.

This case is before us on remand from the Supreme Court of the United States. Sanders v. Clarke, ------ U.S. ------, 109 S. Ct. 831, 102 L. Ed. 2d 964 (1989). We are instructed to consider the case further in light of Penson v. Ohio, --- U.S. ----, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988).

Having studied Penson, we conclude that our previous analysis on the question of prejudice cannot stand. We adhere, however, to our determination on the prior appeal that the conduct of court-appointed counsel for Sanders did not comply with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). The Supreme Court's opinion in Penson supports this portion of our opinion.

We believe the most expeditious way to advance the final determination of this case is to remand it to the District Court for further consideration in light of Penson, this order, and Evans v. Clarke, 868 F.2d 267 (8th Cir. 1989), an opinion in which the relationship between Penson and the present case is explored at some length.

This cause is remanded to the District Court for further consideration as indicated in this opinion.