979 F.2d 1067

Federico MARTINEZ-MACIAS, Texas Department of Corrections,
Death Row Inmate, No. 771, Petitioner-Appellee,
v.
James A. COLLINS, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellant.

No. 91-8656.

United States Court of Appeals,
Fifth Circuit.

Dec. 11, 1992.

Robert S. Walt, Asst. Atty. Gen., Dan Morales, Atty. Gen., Austin, Tex., for respondent-appellant.

Douglas G. Robinson (court-appointed), Skadden, Arps, State, Meagher & Flom, Washington, D.C., Randall T.E. Coyne, Univ. of Okl., College of Law, Norman, Okl. (court-appointed) for petitioner-appellee.

Appeal from the United States District Court for the Western District of Texas; Lucius D. Bunton, III, Judge.

Before POLITZ, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We review today the judgment of the United States District Court granting a writ of habeas corpus on the petition of Federico Martinez-Macias convicted of capital murder in Texas and now on death row in that state. We affirm the judgment below for essentially the reasons stated by the magistrate-judge in her report and recommendation, and the order of the district court adopting it. We have read the record, read the briefs, and heard oral argument. We are left with the firm conviction that Macias was denied his constitutional right to adequate counsel in a capital case in which actual innocence was a close question. The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for.

The judgment granting the petition for habeas corpus is affirmed. The judgment of conviction is vacated and Federico Martinez-Macias shall be released from custody if the State of Texas has not commenced a new trial within 120 days of our mandate.