Larry Steele v. Lorie Davis, Director , 707 F. App'x 811 ( 2018 )


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  •      Case: 15-20770      Document: 00514290722         Page: 1    Date Filed: 01/02/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-20770                                 FILED
    Summary Calendar                         January 2, 2018
    Lyle W. Cayce
    Clerk
    LARRY R. STEELE,
    Petitioner-Appellant
    v.
    LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:15-CV-3274
    Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
    PER CURIAM: *
    Larry R. Steele, Texas prisoner # 1864228, appeals the district court’s
    dismissal of his 
    28 U.S.C. § 2254
     petition for failure to exhaust state remedies.
    According to Steele, he properly exhausted his claims because he raised them
    on direct appeal and in a petition for discretionary review (PDR).                            The
    Respondent does not dispute that the district court committed error by
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-20770     Document: 00514290722      Page: 2      Date Filed: 01/02/2018
    No. 15-20770
    dismissing Steele’s petition for failure to exhaust on the ground that Steele
    failed to raise his claims in a state habeas application. We initially hold that
    the district court’s dismissal of Steele’s petition on that ground was error. See
    Busby v. Dretke, 
    359 F.3d 708
    , 723 (5th Cir. 2004).
    Nonetheless, the Respondent claims that, while three of the claims
    Steele raised in his § 2254 petition were properly exhausted, one of his claims
    was not. As such, the Respondent contends that Steele’s petition is mixed, and
    the district court erred by failing to treat it accordingly.
    Steele’s PDR raised three claims: (i) the evidence was insufficient to
    support his conviction; (ii) the State made an improper argument during the
    punishment phase of his trial; and (iii) the Texas appellate court that affirmed
    his conviction lacked jurisdiction. Steele’s § 2254 petition raised those claims
    but also raised the claim that the State made an improper argument during
    the guilt/innocence phase of his trial. Because Steele did not raise this claim
    in his PDR, it is unexhausted. See Smith v. Quarterman, 
    515 F.3d 392
    , 402
    (5th Cir. 2008); see also Holland v. Anderson, 230 F. App’x 374, 377-79 (5th
    Cir. 2007) (holding that, where petitioner raised claim in his state-court direct
    appeal concerning impartiality of the jury during punishment phase of trial
    and raised a similar claim in his § 2254 petition but applied the claim to the
    guilt/innocence phase of trial, claim was not properly exhausted).
    For the foregoing reasons, the judgment of the district court is
    VACATED and this matter is REMANDED for further proceedings consistent
    with this opinion.
    2
    

Document Info

Docket Number: 15-20770

Citation Numbers: 707 F. App'x 811

Filed Date: 1/2/2018

Precedential Status: Non-Precedential

Modified Date: 1/13/2023