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John D. PRUITT, Appellant, v. Terrell Don HUTTO, Appellee.

No. 76-1062.

United States Court of Appeals, Eighth Circuit.

Feb. 3, 1977.

*1094Before GIBSON, Chief Judge, and MARKEY,* and STEPHENSON, Circuit Judge.

ORDER

We have granted appellant, John Pruitt, an extension of time to file a petition for rehearing in this case. The petition has been filed and considered by this court and we hereby withdraw that portion of our original opinion, 542 F.2d 458, in this case relating to the exhaustion of state remedies on Pruitt’s identification issue. It appears that state prisoners may be precluded by Arkansas law from filing a second post-conviction petition in state courts under Rule 37 of the Arkansas Supreme Court’s Rules of Criminal Procedure. Winberry v. State, 256 Ark. 65, 505 S.W.2d 497 (1974). Furthermore, subsequent to our original decision in this case, Pruitt filed a post-conviction petition in an Arkansas state court and his petition was dismissed because he had already filed one post-conviction petition in Arkansas courts.

In light of these developments, we think that in the interest of justice Pruitt should be deemed to have exhausted his state remedies on his identification issue. We therefore remand the matter to the District Court for further consideration of the in-court identification issue.

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