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this opinion should not be published and is not precedent except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.
2