Burroughs v. Makowski

35 F. App'x 402

Opinion

PER CURIAM.

The petitioner has filed a petition for rehearing. Upon good cause shown, the motion is granted.

The prior decision of this court, filed on February 28, 2002, is modified to the extent that the final paragraph of that opinion shall reflect that the remedy is to reverse and remand to the district court in order to determine whether the petitioner can show “cause and prejudice” under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), for the procedural default. In all other respects, the prior decision is adopted in full. If the district court finds that the petitioner has not shown cause and prejudice, then no writ should issue. However, if the court finds that the petitioner has shown cause and prejudice, then it should then determine whether a writ should issue.

REVERSED AND REMANDED.