UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 92-7147
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JAMES ROY KNOX,
Petitioner-Appellant,
VERSUS
JAMES A. COLLINS, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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August 23, 1993
Before DAVIS, SMITH, and WIENER, Circuit Judges.
PER CURIAM:
In this appeal, we are asked to explain what we meant by the
phrase "reasonable time," when we ordered the district court to
grant a writ of habeas corpus unless the State of Texas retried the
petitioner "within a reasonable time." Holding that this phrase
vests the district court with broad discretion to determine how
quickly the retrial should proceed, we affirm.
I.
In December of 1985, James Roy Knox (Knox) was convicted in
the 56th Judicial District Court, Galveston County, Texas, of
capital murder and sentenced to death. After an unsuccessful
direct appeal and after exhausting his state remedies, Knox filed
a petition for a writ of habeas corpus in the Southern District of
Texas. The district court dismissed Knox's petition, and denied
his motion to alter or amend the judgment. This court reversed the
district court's order and remanded "with instructions to grant the
writ of habeas corpus, unless the State of Texas conducts a new
penalty determination proceeding within a reasonable time." Knox
v. Collins, 928 F.2d 657, 662 (5th Cir. 1991).
This court's mandate issued in April of 1991. In November of
1991, Knox filed a Motion to Enforce Mandate, claiming the
"reasonable time" in which the state could retry Knox had expired.1
Later in the same month, the state moved for the district court to
determine when a retrial had to commence. In February of 1992,
after an oral hearing, the district court denied Knox's motion and
ordered that "the State of Texas shall begin Petitioner's retrial
within ninety (90) days of the entry of this order." In March of
1992, the district court granted Knox's motion to stay the order
and issued a certificate of probable cause to appeal.
II.
A.
Knox argues that "reasonable time," within the meaning of our
mandate, means "90 days." The state responds that our mandate left
it with no duty or authority to begin Knox's retrial until the
district court entered an order setting a time limit for new
1
Although our opinion contemplated the State of Texas
conducting a new penalty determination, both Knox and the State
agree that under Texas law applicable to Knox's case, the State
cannot retry Knox on punishment issues only, but must conduct an
entirely new proceeding on both guilt/innocence and punishment.
Tex. Code Crim. Proc. Ann. Art. 44.29(c) (Vernon Supp. 1993);
Daniel v. State, 585 S.W.2d 688 (Tex. Crim. App. 1979); Hickman
v. State, 548 S.W.2d 736 (Tex. 1977).
2
proceedings to begin.
We agree with Knox that our mandate, by its terms, is self-
executing. In directing the district court to grant the writ of
habeas corpus unless the state retries Knox within a reasonable
time, the mandate does not require an additional order by the
district court setting a time limit for new proceedings to begin.
However, we disagree with Knox that our mandate, by the phrase
"reasonable time," meant "90 days." Knox cites Bourgeois v.
Whitley, 784 F.2d 718 (5th Cir. 1986), in which we ordered that a
habeas corpus petition be granted unless the state court held a
resentencing hearing within "a reasonable time, which should not
exceed ninety days from the issuance of the mandate in this case."
In that case we implicitly recognized that 90 days was a reasonable
time within which to retry the habeas corpus petitioner. But we
issued no such order in this case. Bourgeois demonstrates that, if
we had intended to limit the state to 90 days to retry Knox, we
knew how to draft an order accomplishing that result. By using the
unrestricted phrase "reasonable time," we vested the district court
with broad discretion to weigh the particular circumstances faced
by Knox and the state in getting the case to trial, and decide how
quickly the trial should proceed. This discretion, of course, is
subject to the limits established by the constitutional guarantee
of a speedy trial. Doggett v. United States, ___ U.S. ___, 112
S.Ct. 2686, 120 L.Ed.2d 520, 528 (1992).
Based on the limited evidence presented by Knox, the district
court correctly determined that Knox has not established an
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unreasonable delay in the constitutional sense.2 We conclude that
the district court did not abuse the broad discretion given by our
mandate.
B.
Knox also argues that the state has waived its right to seek
the death penalty on retrial. At the hearing before the district
court, Knox did not address evidence, nor did he request permission
to put on evidence, establishing that the state had waived its
right to seek the death penalty on retrial. We are satisfied that
Knox has not established a waiver as a matter of law from the
admitted facts. We therefore decline to upset the district court's
judgement on this basis.
III.
For the reasons stated above, the order of the district court
is AFFIRMED.
2
However, this issue was not fully ventilated before the
district court. Therefore, Knox's right to present this issue to
the state court is reserved.
4