Hightower v. Director TDCJ

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-11199 (Summary Calendar)

JAMES EDWARD HIGHTOWER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas (3:96-CV-913)

April 15, 1997

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

BY THE COURT:*

ON REHEARING

Following execution of our order granting respondent-

appellee’s motion to expand the record on appeal to include state

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. court records, we granted respondent-appellee’s petition for panel

rehearing. We have now revisited the record as thus expanded and

considered it in light of respondent-appellee’s said motion and

petition, as well as petitioner-appellant’s motion for Certificate

of Probable Cause, which we construed and continue to construe as

a motion for a Certificate of Appealability (COA). Our review and

the now-complete record on appeal satisfies us that our original

grant of COA was erroneous, as was our vacatur of the judgment of

the district court and our remand to that court with instructions,

particularly in light of the revelation that the district court had

the state court records before it when it denied COA to petitioner-

appellant.

We therefore vacate and withdraw our judgment filed February

12, 1997, thereby revoking our grant of COA to petitioner-

appellant, our vacatur of the judgment of the district court, and

our remand to that court; and we now affirm the original judgment

of the district court in all respects.

AFFIRMED.