IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-10576
_______________
ODELL BARNES, JR.,
Petitioner,
VERSUS
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent.
* * * * * * * * * * * *
PHILIP ALAN WISCHKAEMPER and GARY A. TAYLOR,
Appellants.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
January 4, 2002
Before JOLLY, SMITH, and WIENER, Circuit Judges.
B Y T H E C O U R T :
IT IS ORDERED that appellants’ motion for reconsideration,
treated as a petition for panel rehearing, is GRANTED. Appellants’
motion to vacate the order of July 20, 2001, is GRANTED.
Appellants’ motion to reinstate the appeal is GRANTED.
In the order of July 20, 2001, this court ruled that it “has
no jurisdiction to entertain an appeal from the denial of a request
for compensation under [21 U.S.C.] § 848(q)(8).” That ruling was
error in light of an intervening published decision of this court,
No. 01-10573, Clark v. Johnson, 2002 U.S. App. LEXIS 7 (5th Cir.
Jan. 2, 2002). Describing the jurisdictional question as one “of
first impression in this Court,” the panel in Clark held that we
have jurisdiction to review such an order. Id. at *5-*6.
We therefore must address the question whether the district
court erred in holding that state clemency proceedings cannot be
compensated under § 848(q)(8). The Clark panel answered that ques-
tion, as well, holding that “the phrase 'proceeding for executive
or other clemency as may be available to the defendants' as it ap-
pears in § 848(q)(8) does not apply to state clemency proceedings.”
Id. at *10.
Accordingly, the order of the district court denying compen-
sation for state clemency proceedings is AFFIRMED.
2