Opinion
No. 76-8315.
May 1, 1978.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
ORDER
This matter is before us on remand by the Supreme Court. 435 U.S. 559, 98 S.Ct. 1596, 56 L.Ed.2d 547, 1978. The error noted by the Supreme Court in its order of remand arose out of a mistake made in the printing of the opinion of this Court and not in the opinion of the Court. The opinion as agreed to by the reviewing panel and as evidenced by the indorsed copies thereof on file in the Clerk's office, was as follows:
"A review of the record and of the district court's order discloses that this appeal from the order of the district court denying relief is without merit. Accordingly, the order is affirmed for the reasons stated by the district court. Proctor v. Warden, C/A No. M-75-1286, (D.Md., July 2, 1976).
AFFIRMED."
At the same time that the panel filed the opinion in this case it also filed the opinion in No. 76-2233, Blizzard v. Mahan, 559 F.2d 1211. That opinion as agreed to by the reviewing panel and as evidenced by the indorsed copies thereof on file in the Clerk's office, was as set forth in the printed copy of the Blizzard opinion.
When these two opinions were received in the Clerk's office for filing, they were turned over to the printer, who proceeded to attach to the title pages of both the Proctor and Blizzard Cases the opinion in the Blizzard Case and completely omitted printing this Court's actual opinion in Proctor When the printed opinion was returned by the printer to the Clerk's office for verification, the erroneous inclusion of the Blizzard opinion was not discovered. As a result, the printed opinion in Proctor as mailed to the appellant and as distributed did not correspond with the actual opinion of the Court.
We repeat: The error, as the records in the Clerk's office establish beyond controversy, was not that of this panel but of the printer, to whom the Clerk transmitted the opinion for printing. In its opinion as filed, this Court did not misapprehend the nature of petitioner's proceedings or confuse his habeas petition with an action under § 1983 nor did it cite and rely on a District Court decision from North Carolina rather than from Maryland. The opinion of this Court as filed accorded with what the panel, after due consideration, found to be justice and accorded as well with the appearance of justice.
This cause having been remanded by the Supreme Court to us because of the error, the Clerk of this Court is directed to recall the mandate herein and forthwith to issue the correct opinion of this panel, as duly filed in the office of the Clerk as shown by the latter's record. /s/ Donald Russell /s/ H. Emory Widener, Jr. /s/ Kenneth K. Hall
Editor's Note: for correct opinion see 4 Cir., 590 F.2d 1267.