          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                 FILED
                                                              January 16, 2008
                               No. 06-60592
                             Summary Calendar              Charles R. Fulbruge III
                                                                   Clerk

TRACY HARRIS

                                          Petitioner-Appellant

v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS

                                          Respondent-Appellee


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                           USDC No. 2:04-CV-266


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Tracy Harris, Mississippi prisoner # R9409, appeals from the district
court’s judgment denying him habeas corpus relief pursuant to 28 U.S.C. § 2254.
Harris challenges his conviction of murder.
      The district court determined that Harris’s claims that he had received
ineffective assistance of counsel were not exhausted in state court, would be
procedurally barred if raised in state court, and therefore were procedurally


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-60592

barred from being raised in federal court. We granted Harris a certificate of
appealability on the issue whether his claims of ineffective assistance of counsel
were not procedurally barred in state court because he had the same attorney
at trial and on appeal.
      Harris argues that counsel was ineffective for failing to request a
balancing test pursuant to MISS. R. EVID. 403 as to the testimony of two
witnesses. He discusses no other ineffective-assistance claims on appeal. Harris
alleged facts relevant to his ineffective-assistance contention in his state
application for postconviction relief; however, he did not contend that counsel
was ineffective for failing to request a Rule 403 balancing test. Harris did not
fairly present the substance of his ineffective-assistance claim to the state court.
See Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). He did not exhaust his
state remedies as to that claim.        See id.   Harris’s contention would be
procedurally barred were he to raise it in a Mississippi state court, see MISS.
CODE ANN. § 99-39-27(9); the district court did not err by holding it to be
procedurally barred in federal court. See Coleman v. Thompson, 501 U.S. 722,
735 n.1 (1996).
      AFFIRMED.




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