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ALLEN v. STATE OF ALA.

No. 82-7290.

728 F.2d 1384 (1984)

James ALLEN, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.

United States Court of Appeals, Eleventh Circuit.

Rehearing Granted in Part and Denied in Part May 21, 1984.

Attorney(s) appearing for the Case

N.P. Callahan, Jr. (Court Appointed), Birmingham, Ala., for petitioner-appellant.

Thomas R. Allison, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.

Before GODBOLD, Chief Judge, RONEY and SMITH, Circuit Judges.

GODBOLD, Chief Judge:

In this habeas case we must decide whether a remand is necessary for an evidentiary hearing on whether petitioner Allen waived his right to a direct merits appeal in state court. If on remand the district court finds Allen entitled to an out of time appeal, he desires to present only one issue to the state appellate court. After picking our way through a procedural maze we conclude that the case must be remanded for an evidentiary hearing.

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