In United States v. Munsingwear, 340 U.S. 36, 39, 71 S. Ct. 104, 106, 95 L. Ed. 36, the Court stated that

"[t]he established practice of the Court in dealing with a civil case from a court in the federal system that has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss."

But that need not be done in this case, first, because respondent Davis's petition for a writ of habeas corpus has already been dismissed by the District Court on motion by Davis after the State's petition for a writ of certiorari had been filed. See Supplement to Petition for Cert. 6. And second, it should be noted that the judgment of the Court of Appeals did not order that Davis be released from custody, but merely held that his attorneys had failed to discharge their duty to their client, and therefore reversed and remanded the case for a evidentiary hearing to determine whether that failure had prejudiced him. 596 F.2d 1214, 1223. If such a hearing should one day be held in accordance with the opinion of the Court of Appeals, and should Davis ultimately succeed in getting his conviction vacated, there will still be an opportunity for this Court to review any decision on the merits. In the meantime, it is difficult to see what harm would flow to the State if we were simply to let the judgment of the Court of Appeals stand. There is no realistic possibility that the judgment could "spawn[] any legal consequences." United States v. Munsingwear, supra, 340 U.S., at 41, 71 S. Ct., at 107. Thus, there is no particular justification for this Court's intervention.

Accordingly, I would simply deny the petition for a writ of certiorari.

Opinion after remand, 667 F.2d 366.