UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 92-7147

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JAMES ROY KNOX,

Petitioner-Appellant,

VERSUS

JAMES A. COLLINS, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

____________________________________________________ August 23, 1993

Before DAVIS, SMITH, and WIENER, Circuit Judges.

PER CURIAM:

In this appeal, we are asked to explain what we meant by the

phrase "reasonable time," when we ordered the distri ct court to

grant a writ of habeas corpus unless the State of Texas retried the

petitioner "within a re asonable time." Holding that this phrase

vests the district court with broad d iscretion to determine how

quickly the retrial should proceed, we affirm.

I.

In December of 1985, James Roy Knox (Knox) was convicted in

the 56th Judicial District Court, Galveston County, Texas, of

capital mur der and sentenced to death. After an unsuccessful

direct appeal and after exhausting his state remedies, Knox filed

a petition for a writ of habeas corpus in the Southern District of1 Although our opinion contemplated the State of Texas

conducting a new penalty determination, both Knox and the State

agree that under Texas law applicable to Knox's case, the State

cannot retry Knox on punishment issues only, but must conduct an

entirely new proceeding on both guilt/innocence and punishment.

Tex. Code Crim. Proc. Ann. Art. 44.29(c) (Vernon Supp. 1993);

Daniel v. State , 585 S.W.2d 688 (Tex. Crim. App. 1979); Hickman

v. State , 548 S.W.2d 736 (Tex. 1977).

2 Texas. The district court dismissed Knox's petition, and denied

his motion to alter or amend the judgment. This court reversed the

district court's order and remanded "with instructions to grant the

writ of habeas corpus, unless the State of Texas co nducts a new

penalty determination proceeding within a reasonable time." Knox

v. Collins , 928 F.2d 657, 662 (5th Cir. 1991).

This court's mandate issued in April of 1991. In November of

1991, Knox filed a Motion to Enforce Mandate, claiming the

"reasonable time" in which the state could retry Knox had expired. 1

Later in the same month, the state moved for the district court to

d etermine when a retrial had to commence. In February of 1992,

after an oral hearing, the district court denied Knox's motion and

ordered that "the State of Texas shall begin Petitioner's retrial

within ninety (90) days of the entry of this order." In March of

1992, the district court granted Knox's motion to stay the order

and issued a certificate of probable cause to appeal.

II.

A.

Knox argues that "reasonable time," within the meaning of our

mandate, means "90 days." The state responds that our mandate left

it with no duty or authority to begin Knox's retrial until the

district court entered an order setting a time limit for new3

proceedings to begin.

We agree with Knox that o ur mandate, by its terms, is selfe xecuting. In directing the district court to grant the writ of

habeas corpus unless the state retries Knox within a reasonable

time, the mandate does not require an additional order by the

district court setting a time limit for new proceedings to begin.

However, we disagree with Knox that our mandate, by the phrase

"reasonable t ime," meant "90 days." Knox cites B ourgeois v.

Whitley , 784 F.2d 718 (5th Cir. 1986), in which we ordered that a

habeas corpus petition be granted unless the state court held a

resentencing hearing within "a re asonable time, which should not

exceed ninety days from the issuance of the mandate in this case."

In that case we implicitly recognized that 90 days was a reasonable

time within w hich to retry the habeas corpus petitioner. But we

issued no such order in this case. B ourgeois demonstrates that, if

we had intended to limit the state to 90 days to retry Knox, we

knew how to draft an order accomplishing that result. By using the

unrestricted phrase "reasonable time," we vested the district court

with broad discretion to weigh the particular circumstances faced

by Knox and the state in getting the case to trial, and decide how

quickly the trial should proceed. This discretion, of course, is

subject to the limits established by the constitutional guarantee

of a speedy trial. D oggett v. United States

,

___ U.S.

___, 112

S.Ct. 2686, 120 L.Ed.2d 520, 528 (1992).

Based on the limited evidence presented by Knox, the district

court correctly determined that Knox has not established an2 However, this issue was not fully ventilated before the

district court. Therefore, Knox's right to present this issue to

the state court is reserved.

4 unreasonable delay in the constitutional sense. 2 We conclude that

the district court did not abuse the broad discretion given by our

mandate.

B.

Knox also argues that the state has waived its right to seek

the death penalty on retrial. At the hearing before the district

court, Knox did not address evidence, nor did he request permission

to put on evidence, establishing that the state had waived its

right to seek the death penalty on retrial. We are satisfied that

Knox has not established a waiver as a matter of law from the

admitted facts. We therefore decline to upset the district court's

judgement on this basis.

III.

For the reasons stated above, the order of the district court

is AFFIRMED.