ORDER
In our opinion in this case filed August 16, 2007, we remanded to the postconviction court for an evidentiary hearing on appellant Pierre LaMont Leake's claim of ineffective assistance of appellate counsel. Leake v. State, 737 N.W.2d 531 (Minn. 2007).
Respondent State of Minnesota has filed a petition requesting that this court withdraw its opinion and allow respondent to file a responsive brief on the ineffective assistance of appellate counsel issue on the grounds that pro se appellant Leake failed to serve respondent with a copy of his appellate brief. In the alternative, respondent requests that this court strike from its opinion the sentence, "[t]he state did not file a brief opposing Leake's appeal."
Appellant has filed a separate petition for rehearing on the issue of judicial bias due to jury instructions that were allegedly prejudicial and unconstitutional. He argues that because this issue was raised in his direct appeal, it is not barred by State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976).
Based upon all the files, records and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. The petition of respondent State of Minnesota requesting that this court withdraw its opinion and allow respondent to file a responsive brief be, and the same is, denied.
2. In light of the unique circumstances of this case, if there is an appeal from the order of the postconviction court after the evidentiary hearing, the law-of-the-case doctrine will not bar respondent from arguing any issues related to appellant's ineffective assistance of appellate counsel claim.
3. The motion of respondent State of Minnesota requesting that this court strike the sentence, "[t]he state did not file a brief opposing Leake's appeal," be, and the same is, denied.
4. The petition of appellant Pierre LaMont Leake for rehearing be, and the same is, denied.
BY THE COURT:
/s/ Alan C. Page Alan C. Page Associate Justice