Summary
granting federal habeas petition due to trial counsel's numerous errors, some more glaring then the failure to seek out defense experts, concluding that it was "irresponsible" for trial counsel not to seek out expert assistance as evidenced by the fact that postconviction counsel found several experts to testify on the defendant's behalf including a "DNA expert and a treadmark and footprint expert" that would have testified that the physical evidence did not tie the defendant to the scene of the crime
Summary of this case from Yarbrough v. JohnsonOpinion
No. 00-2979.
September 28, 2001.
Appeal from the United State District Court for the Northern District of Indiana, South Bend Division. No. 99 C 258. Allen Sharp, Judge.
Before POSNER, EASTERBROOK, RIPPLE, Circuit Judges.
A "Joint Motion to Withdraw Petition For Rehearing and to Dismiss Appeal" was filed on August 7, 2001 and is now before the court.
On June 29, 2001 we reversed the judgment of the district court and directed that the State of Indiana release or retry the petitioner within 120 days. The state filed a Petition for Rehearing En Banc, which has been stayed pending further order. The parties have settled the case and now jointly move this court to withdraw the petition for rehearing and voluntarily dismiss this appeal.
The state may of course withdraw the petition for rehearing, but the court will not dismiss an appeal after the appeal has been decided. Cf. U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994). However, we shall change the terms of the remand to conform to the agreed disposition of the case. Accordingly,
IT IS ORDERED that this court's order directing the district court to issue a conditional writ of habeas corpus and the award of costs are VACATED and the petition for rehearing is DISMISSED.