Dan Morales, Atty. Gen., S. Michael Bozarth, Asst. Atty. Gen., Austin, TX, for respondents-appellants.
B.J. Walter, Jr. (Ct. App.), Nathan, Wood & Sommers, Houston, TX, for petitioner-appellee.
Appeal from the United States District Court for the Western District of Texas.
ON PETITION FOR REHEARING
(Opinion January 26, 1994, 5th Cir.1994, 12 F.3d 66)
Before DUHE and EMILIO M. GARZA, Circuit Judges, and BLACK,1 District Judge.
PER CURIAM:
We disposed of this appeal by reversing the grant of habeas relief and dismissing the habeas petition. On application for rehearing, Petitioner asks for a remand to permit the district court to address his claim that he had ineffective assistance of counsel. After finding the indictment insufficient, the district court did not reach the issue of effectiveness of counsel. We deny the application for rehearing except to the limited extent that it requests remand rather than dismissal. See Burley v. Bastrop Loan Co., 590 F.2d 160, 161 n. 3 (5th Cir.1979) (remanding for further proceedings on Plaintiff's alternative theory for summary judgment, after reversing summary judgment on the theory adopted by the district court).
APPLICATION DENIED IN PART AND GRANTED IN PART to the extent that petition for habeas relief is REMANDED for further proceedings.
Chief Judge of the Southern District of Texas, sitting by designation