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PEREZ v. WAINWRIGHT

No. 78-1346.

640 F.2d 596 (1981)

Antonio PEREZ, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent-Appellant.

United States Court of Appeals, Fifth Circuit.

March 23, 1981.

Attorney(s) appearing for the Case

Anthony C. Musto, Margarite Esquiroz, Asst. Attys. Gen., Miami, Fla., for respondent-appellant.

Karen M. Gottlieb, Asst. Public Defender, Miami, Fla., for petitioner-appellee.

Before MORGAN, FAY and RUBIN, Circuit Judges.

ON PETITION FOR REHEARING

ALVIN B. RUBIN, Circuit Judge:

Retained counsel for Perez failed to perfect an appeal of Perez's state court conviction after promising to do so and falsely stating in open court at the time judgment was rendered that an appeal had already been filed. Based on this dereliction, Perez sought habeas corpus. Our original decision denied relief because we were bound by Fitzgerald v. Estelle, 505 F.2d 1334

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