Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
November 19, 2004
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 98-20385
MAX ALEXANDER SOFFAR,
Petitioner-Appellant,
v.
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
Before GARZA, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:
No member of the panel nor judge in regular active service of
the Court having requested that the Court be polled on Rehearing En
Banc (FED R. APP. P. and 5TH CIR. R.35), the Petition for Rehearing En
Banc filed herein by the State is DENIED.
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is GRANTED to the
limited extent to effect the following amendment in the text of the
panel opinion issued herein under date of April 21, 2004, as
follows:

A. The following quoted text as it appears in the panel
opinion at Soffar v. Dretke, 368 F.3d 441, 464-65 (5th Cir. 2004),
filed April 21, 2004, is deleted:
In our view the grant of COA by the
original panel decision in Soffar I to
consider the merits of the two claims before
us here, which has been reinstated by the
opinion of the en banc Court in Soffar II,
clearly
complies
with
the
test
of
"debatability of the underlying constitutional
claims" as instructed by the Supreme Court in
Miller-El.
In his dissent here in Soffar III, Judge
Garza obviously decides to change his mind in
part about our prior grant of COA's on the
merits of these two issues and now contends
that the ineffective assistance of counsel
issue is not properly before us procedurally,
thereby avoiding the mandate of our en
banc Court to address the merits of that
issue, for which COA was granted. Out of an
abundance of caution, however, we address the
State's (and now Judge Garza's) contentions
with the following analysis which is what was
relied upon by the panel in Soffar I to grant
COA on this issue, though not expressly
articulated therein.
B. The following quoted text shall be substituted in lieu of
the deleted text set forth above:
In our view the grant of COA by the
original panel decision in Soffar I to
consider the merits of the two claims before
us here, which has been reinstated by the
opinion of the en banc Court in Soffar II,
clearly
complies
with
the
test
of
"debatability of the underlying constitutional
claims" as instructed by the Supreme Court in
Miller-El.
In his dissent here in Soffar III, Judge
Garza initially contends that the ineffective
assistance of counsel issue is not properly
before us procedurally. As the following
2

discussion demonstrates, we disagree with his
contention on this threshold issue.
C. The foregoing amendment does not effect a substantive
change in the judgment of the Court contemplated by the original
panel opinion issued on April 21, 2004. Therefore, the Clerk is
instructed to issue forthwith upon the filing of this order the
mandate on the original panel opinion as amended by this order.
3