ON PETITION FOR PANEL REHEARING Before DAVIS, EMILIO M. GARZA and DENNIS, Circuit Judges. EMILIO M. GARZA, Circuit Judge: The petition for panel rehearing is DENIED. In denying rehearing, the panel believes that the opinion properly holds that the district court abused its discretion when it excluded four exhibits relevant to the issue of whether Valdez’s counsel were ineffective for not investigating and presenting evidence at sentencing of his alleged mental retardation.
As the opinion states, the exhibits are relevant because they existed at the time of the 1988 trial and undercut Valdez’s assertion that he is mentally retarded. Moreover, to the extent that the district court excluded the exhibits as a sanction for alleged discovery violations in prior state court proceedings, the panel still believes that the district court abused its discretion.
Although, as the dissent notes, there are many cases supporting a district court’s discretion to fashion appropriate sanctions for failing to comply with the Federal Rules of Civil Procedure and pretrial orders, those facts are not present here. Valdez is not objecting to the Director’s failure to comply with an order issued by the district court in his federal habeas proceeding. Rather, Valdez is objecting on the ground that the State failed to comply with discovery requests in earlier proceedings in state court.
Finally, the panel notes that Valdez has not shown that the State’s failure to produce these exhibits sooner prejudiced him. The exhibits at issue indicate that Valdez was not mentally retarded. Consequently, the State’s failure to introduce them at Valdez’s earlier capital murder trial and state habeas hearing actually worked to Valdez’s advantage.