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Revised January 25, 2002
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-10512
MARK ROBERTSON,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
January 17, 2002
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:
On December 4, 2000, this Court issued an opinion which held
that Mark Robertson, petitioner, was not entitled to a Certificate
of Appealability (COA) on (i) his claim that due process required
instruction at trial on the lesser included offense of murder, nor
(ii) on his claim that the trial court's jury instructions failed
to provide an adequate vehicle for consideration of his

constitutionally relevant mitigating evidence. Petitioner applied
for certiorari to the Supreme Court. On July 11, 2001, the Supreme
Court held that the judgment of this Court should be vacated with
costs and "the case is remanded to the United States Court of
Appeals for the Fifth Circuit for further consideration in light of
Penry v. Johnson, 532 U.S. 782 (2001)" (Penry II). On remand to
this Court, we called for supplemental briefing by the parties as
to the impact of Penry II on our decisions herein. After careful
review of the supplemental briefs, we have concluded that there is
no substantial difference between the jury instructions on
mitigation given in this case and those given in Penry II.
Accordingly, we grant petitioner's motion for a COA with respect to
his jury instruction claims, vacate the district court's judgment
denying Robertson's application for a federal writ of habeas
corpus, and remand the case to the district court. The district
court is instructed to grant Robertson's application for a writ of
habeas corpus unless the State of Texas within a reasonable time
either (i) grants Robertson a new trial on the issue of punishment
only, as permitted by Tex. Code Crim. Proc. art. 44.29(c) or (ii)
vacates Robertson's sentence and imposes a sentence less than
death. See Moore v. Johnson, 194 F.3d 586, 622 (5th Cir. 1999).
COA GRANTED in part, judgment below VACATED, and case REMANDED
to the United States District Court for the Northern District of
Texas.
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