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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.
2