Joe Billy Toles v. Mr. C.E. Jones (Warden) and the Attorney General of the State of Alabama

As the court properly observes, in its per curiam opinion, we took this case en banc to consider a question the Supreme Court has now decided, in Coleman v. Thompson, — U.S. —, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). Given this development, and the supposed absence of any other issue worthy of en banc consideration, see Fed.R.App.P. 35(a), the court concludes that our order taking the case en banc should be vacated and the panel opinion reinstated. I dissent because an issue worthy of the full court’s consideration still remains.

The panel refused to consider petitioner’s ineffective…