Arthur James Julius v. W.J. Johnson, Warden, Holman Unit , 854 F.2d 400 ( 1988 )

854 F.2d 400

Arthur James JULIUS, Petitioner-Appellant,
v.
W.J. JOHNSON, Warden, Holman Unit, Respondent-Appellee.

No. 86-7589.

United States Court of Appeals,
Eleventh Circuit.

Aug. 19, 1988.

Thomas M. Goggans, Montgomery, Ala., for petitioner-appellant.

Charles Graddick, Atty. Gen. of Ala., John Gibbs, Ed Carnes, Asst. Attys. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Alabama, Truman M. Hobbs, Chief Judge.

ON PETITIONS FOR REHEARING FILED BY BOTH PARTIES AND ON

SUGGESTION FOR REHEARING IN BANC FILED BY APPELLANT

(Opinion March 9, 1988, 11 Cir., 840 F.2d 1533)

Before VANCE, HATCHETT and CLARK, Circuit Judges.

PER CURIAM:

1

Upon consideration of respondent-appellee's petition for rehearing in the nature of a request for modification, the opinion filed March 9, 1988 is modified in the following respects:

2

(1) We hereby delete paragraph twelve under Section I of the opinion. 840 F.2d 1533, 1540 (11th Cir.1988).

3

(2) The first sentence in the thirteenth paragraph is modified by making the following addition:

4

Turning to the charge that his counsel was ineffective, Julius argues that admission of the prior offense violated his right to a fundamentally fair trial. We need not address the issue of ineffectiveness because in the interim, the issue has been put to rest by the Supreme Court in Marshall v. Lonberger, 459 U.S. 422, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983).

5

The petition for rehearing filed by appellant Julius is DENIED, and no member of this panel nor other judge in regular active service on the court having requested that the court be polled on rehearing in banc (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the suggestion for rehearing in banc is DENIED.