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105 F.3d 209

Docket No. 96-20218.

Mata v. Johnson

Fifth Circuit Court of Appeals

Decided Jan. 23, 1997.

Fifth Circuit Court of Appeals · decided 1997-01-23

2 counsel of record

Relies on New York v. Ferber · Washington v. Watkins · Mata v. Johnson

Good law ✅— No negative treatment on recordhow we know

Decided 1997-01-23

How this case has been cited

Cited by 52 later decisions — most recently May 2018 · most notably Nobles v. Johnson (1997), Rector v. Johnson (1997)

16 federal appellate · 1 district · 4 state decisions

350199720002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1*210Gregory William Wiercioch, Mandy Welch, Texas Defenders Office, Houston, TX, for petitioner-appellant.

¶2Margaret Portman Griffey, Office of Attorney General for State of Texas, Austin, TX, for respondent-appellee.

¶3ON PETITION FOR REHEARING

¶4Before WIENER, PARKER and DENNIS, Circuit Judges.

¶5BY THE COURT:

¶6After we issued our panel opinion in this case,1 Petitioner-Appellant Ramon Mata, Jr. filed a petition for panel rehearing in which he urges us to reconsider our determination that federal habeas review of Mata’s fair trial claim is barred by the state habeas court’s disposition of Mata’s claim on independent state procedural grounds. In his response to Mata’s petition for rehearing, the Director concedes that the procedural bar relied on by the state habeas court does not bar federal habeas review' of Mata’s fair trial claim. Further, the Director addressed the merits of Mata’s fair trial claim, both in the district court and in his appellate brief, without arguing that Mata’s claim is procedurally barred by Mata’s failure to make a contemporaneous objection at trial. Therefore, the Director waived any procedural default resulting from Mata’s failure to object at trial.2

¶7No procedural impediment prevents consideration of -the merits of Mata’s fair trial claim on federal habeas review. As the district court deemed federal habeas review to be foreclosed, however, that court did not conduct an evidentiary hearing and thus has not had an opportunity to make an informed assessment of Mata’s fair trial claim. Therefore, we grant Mata’s petition for panel rehearing, vacate parts II.E and III of the panel opinion, and remand to the district court with instructions to conduct a full evi-dentiary hearing on Mata’s fair trial claim and thereafter to rule on Mata’s habeas corpus petition to the extent of his fair trial claim.

¶8Rehearing GRANTED; parts II.E and III of this panel’s opinion of October 31, 1996 VACATED; and Mata’s habeas corpus petition REMANDED for an evidentiary hearing in the district court and reconsideration in light of such hearing.

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