Jordan v. Hargett

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              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 93-7660
                       _____________________


     JOHN S. JORDAN,

                                    Petitioner-Appellant,

                              versus

     EDWARD HARGETT, Superintendent,
     Mississippi State Penitentiary,
     ET AL.,

                                    Respondents-Appellees.

     _______________________________________________________

         Appeal from the United States District Court for
               the Northern District of Mississippi
     _______________________________________________________

                          (May 15, 1995)


Before POLITZ, Chief Judge, REAVLEY, KING, GARWOOD, JOLLY,
HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE,
EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART and PARKER, Circuit
Judges.

PER CURIAM:

     The panel ordered this case remanded to the district judge

to conduct his own evidentiary hearing before rejecting the

magistrate judge's findings on the credibility of the witnesses.

Jordan v. Hargett, 34 F.3d 310 (5th Cir. 1994).   Since vacating

the panel opinion, the en banc court is informed that the

attorney who defended Jordan in the state trial but did not

testify at the magistrate judge's hearing has now been located
and is prepared to contribute his testimony on the question of

whether the defendant acceded to the attorney's advice in not

testifying.   Because of the uncertainty of what may ultimately be

determined to be the facts underlying the questions raised in

this case, we conclude that we need not decide the questions of

constitutional law discussed in the panel opinion.   The panel

opinion remains vacated.   We remand to the district court for

further proceedings.

     Judgment of the District Court is VACATED and Case REMANDED.




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