Revised January 25, 2002

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-10512

MARK ROBERTSON,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Texas January 17, 2002

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges. DeMOSS, Circuit Judge:

On December 4, 2000, this Court issued an opinion which held

that Mark Robertson, petitioner, was not entitled to a Certificate

of Appealability (COA) on (i) his claim that due process required

instruction at trial on the lesser included offense of murder, nor

(ii) on his claim that the trial court’s jury instructions failed

to provide an adequate vehicle for consideration of his constitutionally relevant mitigating evidence. Petitioner applied

for certiorari to the Supreme Court. On July 11, 2001, the Supreme

Court held that the judgment of this Court should be vacated with

costs and “the case is remanded to the United States Court of

Appeals for the Fifth Circuit for further consideration in light of

Penry v. Johnson,

(2001)” (Penry II). On remand to

this Court, we called for supplemental briefing by the parties as

to the impact of Penry II on our decisions herein. After careful

review of the supplemental briefs, we have concluded that there is

no substantial difference between the jury instructions on

mitigation given in this case and those given in Penry II.

Accordingly, we grant petitioner’s motion for a COA with respect to

his jury instruction claims, vacate the district court’s judgment

denying Robertson’s application for a federal writ of habeas

corpus, and remand the case to the district court. The district

court is instructed to grant Robertson’s application for a writ of

habeas corpus unless the State of Texas within a reasonable time

either (i) grants Robertson a new trial on the issue of punishment

only, as permitted by Tex. Code Crim. Proc. art. 44.29(c) or (ii)

vacates Robertson’s sentence and imposes a sentence less than

death. See Moore v. Johnson,

(5th Cir. 1999).

COA GRANTED in part, judgment below VACATED, and case REMANDED

to the United States District Court for the Northern District of

Texas.

2