David Gardner v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-11014
_____________________
DAVID GARDNER,
Petitioner - Appellant,
v.
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court for the
Northern District of Texas
May 1, 2001
ON PETITION FOR REHEARING
(Opinion April 4, 2001. 5th Cir. 2001, _____F.3d____)
Before JOLLY, WIENER, and STEWART, Circuit Judges.
PER CURIAM:
It is ORDERED that the petition for rehearing is granted for
the limited purpose of revising the last sentence of our opinion,
which we delete and replace with the following:
The judgment of the district court is reversed and the
case remanded to that court with instructions to enter an
order granting Gardner a writ of habeas corpus unless,
within a reasonable time specified by the district court,
the State of Texas either (1) conducts a new,
constitutionally permissible, sentencing proceeding or
(2) vacates Gardner’s death sentence and imposes the
automatic life sentence specified by Texas law for a
defendant who is convicted of capital murder but not

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sentenced to death.
REVERSED and REMANDED with INSTRUCTIONS.

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