IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-20475 _____________________

CARL THOMAS CORTE,

Petitioner-Appellee,

versus

GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (H-96-CV-1806) _________________________________________________________________ April 7, 2000

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Carl Corte seeks habeas corpus relief, charging that his

sentence was unconstitutional. The magistrate judge vacated the

sentence and ordered the state court to release Corte within ninety

days “unless the State of Texas, within such 90-day period, either

retries or releases Carl Thomas Corte.” We vacate the order and

remand with instruction.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I

Corte was convicted in Texas state court in 1981 of aggravated

robbery. Corte had a 1957 conviction for forgery that was used to

enhance his sentence in the 1981 matter. After unsuccessfully

seeking relief from Texas state courts, Corte filed a petition for

writ of habeas corpus in federal court in June 1996. The basis for

both his state and federal claims was that the 1957 conviction was

invalid because he was not represented by counsel at sentencing;

accordingly, the conviction should not have been used to enhance

his sentence for his 1981 offense.

The parties consented to proceed before a federal magistrate

judge. The magistrate judge determined that the state habeas

court’s adjudication of Corte’s claims was based on an unreasonable

application of clearly established federal law because the state

court placed the burden of proof on Corte for establishing that he

was not represented by counsel in the 1957 proceeding. But the

magistrate judge dismissed the application on the grounds that

Corte had unreasonably delayed bringing his claim, and that this

had prejudiced the State. On appeal, this court vacated the

judgment and remanded for an evidentiary hearing on unreasonable

delay and prejudice.

On remand, the magistrate judge determined that Corte’s delay

was excusable and that the State failed to demonstrate prejudice.

The magistrate judge found that Corte lacked counsel at his 1957

sentencing hearing and that the State failed to demonstrate that

2 Corte had waived counsel. Thus, the magistrate judge determined

that Corte’s 1957 conviction was invalid and should not have been

used to enhance his sentence in 1981.

The magistrate judge then determined that Corte was entitled

to a new trial, as opposed to resentencing, because he had been

convicted and sentenced by a jury.1 Accordingly, the magistrate

judge declared the 1957 conviction void, ordered that the 1981

conviction be vacated and that Corte be released ninety days after

the entry of judgment, “unless the State of Texas, within such 90-

day period, either retries or releases Carl Thomas Corte.” The

magistrate judge later denied the State’s motion to alter or amend

judgment but granted the State’s request for a stay of judgment

pending appeal. The State appealed.

On appeal, the State does not contest the magistrate judge’s

determination that the 1957 conviction is void, nor does the State

argue that the conviction should not have been used for sentencing

enhancement. The issue raised by the State is whether, after

finding error only at the punishment phase of the trial, the

magistrate judge exceeded her authority by ordering the State to

retry Corte or release him.

1 This determination may have been based on Texas law as it existed in 1981, providing that if a prior conviction used for sentencing enhancement is void, and if punishment is decided by the convicting jury, the conviction must be set aside. Tex. Code Crim. Proc. Ann. Art. 37.07(2)(b) (Vernon 1981). This law was subsequently changed, however, to allow the court to resentence the defendant only, and this change was made retroactive. Tex. Code Crim. Proc. Ann. Art. 44.29(b) (West 1998).

3 II

We must first determine the proper standard of review. The

State contends that we should review this issue de novo. In Smith

v. Lucas,

, 365 n.11 (5th Cir. 1993), we held that “the

district court’s conclusions about the extent of its authority in

issuing the writ under both our mandate and federal law are . . .

issues of law reviewable de novo.” At the same time,

grants district courts the discretion to dispose of habeas

corpus matters “as law and justice require.” The Supreme Court has

interpreted § 2243 to allow federal courts “broad discretion in

conditioning a judgment granting habeas relief.” Hilton v.

Braunskill,

,

,

(1987).

We do not believe there is a contradiction here. When the

district court rules on the bounds of its own authority in

fashioning habeas corpus remedies, we review its determination de

novo. But when the district court actually imposes a particular

remedy, we review the choice made for an abuse of discretion.2

III

We thus review the remedy imposed by the magistrate judge here

for an abuse of discretion. The magistrate judge did not consider

the bounds of her authority. She provided the state court with an

2 This standard of review governs even when the district court has fashioned a remedy outside the realm of its ability to do so. Such a remedy, however, is an abuse of discretion as a matter of law.

4 option--either set Corte free or retry him. We review this order

for an abuse of discretion.

A district court’s power under the writ of habeas corpus is

solely over the body of the petitioner. Duhamel v. Collins,

(5th Cir. 1992). This sole power is to order the

petitioner’s release. Smith,

. The district court

can, of course, withhold habeas relief if the state court is able

to correct the constitutional error. Richmond v. Lewis,

,

,

(1992). But the district

court’s power over the petitioner’s body and ability to deny

release under certain circumstances does not give a district court

the authority to dictate to state courts the proper method for

correcting the constitutional error. That is up to them.

For that reason, the district court’s order in this case was

outside its authority, and consequently was an abuse of discretion.

The district court ordered the state court to retry Corte for the

1981 offense. A full retrial is not constitutionally necessary,

however, because the constitutional error alleged related solely to

sentencing. The state court may correct the constitutional error

in the sentence using whatever means it finds appropriate under

state law.3 Thus, we remand to the district court with an

instruction that it issue an order to the state court to release

Corte unless the state court corrects the constitutional error

3 As already noted, it appears that under Texas law, only the sentencing issue will need to be retried.

5 within ninety days.

IV

For the reasons stated herein, the district court order is

VACATED, and the case is REMANDED for proceedings pursuant to this

decision.

VACATED and REMANDED.

6