IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-10576 _______________

ODELL BARNES, JR.,

Petitioner,

VERSUS

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent.

* * * * * * * * * * * *

PHILIP ALAN WISCHKAEMPER and GARY A. TAYLOR,

Appellants.

_________________________

Appeal from the United States District Court for the Northern District of Texas _________________________

January 4, 2002

Before JOLLY, SMITH, and WIENER, Circuit Judges.

B Y T H E C O U R T :

IT IS ORDERED that appellants’ motion for reconsideration,

treated as a petition for panel rehearing, is GRANTED. Appellants’

motion to vacate the order of July 20, 2001, is GRANTED. Appellants’ motion to reinstate the appeal is GRANTED.

In the order of July 20, 2001, this court ruled that it “has

no jurisdiction to entertain an appeal from the denial of a request

for compensation under [21 U.S.C.] § 848(q)(8).” That ruling was

error in light of an intervening published decision of this court,

No. 01-10573, Clark v. Johnson,

(5th Cir.

Jan. 2, 2002). Describing the jurisdictional question as one “of

first impression in this Court,” the panel in Clark held that we

have jurisdiction to review such an order.

at *5-*6.

We therefore must address the question whether the district

court erred in holding that state clemency proceedings cannot be

compensated under § 848(q)(8). The Clark panel answered that ques-

tion, as well, holding that “the phrase 'proceeding for executive

or other clemency as may be available to the defendants' as it ap-

pears in § 848(q)(8) does not apply to state clemency proceedings.”

Id. at *10.

Accordingly, the order of the district court denying compen-

sation for state clemency proceedings is AFFIRMED.

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