Wilburn H. Henderson, Appellee, v. Willis Sargent, Warden, Arkansas Department of Correction, Appellant, 939 F.2d 586 (8th Cir. 1991)

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U.S. Court of Appeals for the Eighth Circuit - 939 F.2d 586 (8th Cir. 1991) July 22, 1991. Rehearing and Rehearing En Banc Denied Aug. 23, 1991

Jack Gillean, Little Rock, Ark., for appellant.

Gerald Coleman, West Memphis, Ark., for appellee.

Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and HENLEY, Senior Circuit Judge.


The court grants in part the petition for rehearing. The court amends its earlier opinion filed February 19, 1991, 926 F.2d 706 (8th Cir.) as follows: The discussion within Part A of the opinion previously filed which holds Rule 37 counsel ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and finds cause to lift the procedural bar is hereby vacated. See Coleman v. Thompson, --- U.S. ----, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991).

All other discussions within Part A and the court's holding that the constitutional violation based on trial counsel's ineffectiveness "probably resulted in the conviction of one who is actually innocent" is reaffirmed. Accordingly the district court's grant of the writ of habeas corpus vacating Henderson's conviction is reaffirmed.

The suggestion for rehearing en banc as to the alternative holding by the panel is now hereby referred to the full court.