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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20218
RAMON MATA, JR.,
Petitioner-Appellant,
versus
GARY JOHNSON, Director,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
January 23, 1997
Before WIENER, PARKER, and DENNIS, Circuit Judges.
ON PETITION FOR REHEARING
(Opinion October 31, 1996, 5th Cir., 99 F.3d 1261)
BY THE COURT:
After 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 gounds. In his response to Mata's petition for
1 Mata v. Johnson, 99 F.3d 1261 (5th Cir. 1996).

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
No 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
evidentiary 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.
Rehearing 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.
2 See, e.g., Reddix v. Thigpen, 805 F.2d 506, 512 (5th Cir.
1986); Wiggins v. Procunier, 753 F.2d 1318, 1321 (5th Cir. 1985);
Washington v. Watkins, 655 F.2d 1346, 1368 (5th Cir. 1981), cert.
denied, 456 U.S. 949, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982).
2