                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 96-11199
                          (Summary Calendar)



JAMES EDWARD HIGHTOWER,

                                                 Petitioner-Appellant,


                                     versus


GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,

                                                 Respondent-Appellee.



          Appeal from the United States District Court
               for the Northern District of Texas
                          (3:96-CV-913)


                               April 15, 1997


Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

BY THE COURT:*


                                ON REHEARING

     Following     execution    of     our    order   granting   respondent-

appellee’s motion to expand the record on appeal to include state



    *
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
court records, we granted respondent-appellee’s petition for panel

rehearing.    We have now revisited the record as thus expanded and

considered it in light of respondent-appellee’s said motion and

petition, as well as petitioner-appellant’s motion for Certificate

of Probable Cause, which we construed and continue to construe as

a motion for a Certificate of Appealability (COA).           Our review and

the now-complete record on appeal satisfies us that our original

grant of COA was erroneous, as was our vacatur of the judgment of

the district court and our remand to that court with instructions,

particularly in light of the revelation that the district court had

the state court records before it when it denied COA to petitioner-

appellant.

      We therefore vacate and withdraw our judgment filed February

12,   1997,   thereby   revoking   our   grant   of   COA   to   petitioner-

appellant, our vacatur of the judgment of the district court, and

our remand to that court; and we now affirm the original judgment

of the district court in all respects.

AFFIRMED.




                                    2
