                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit

                             No. 02-41152



                            ELROY CHESTER,

                                                Petitioner - Appellee,



                                VERSUS


 JANIE COCKRELL, Director, Texas Department of Criminal Justice,
                     Institutional Division,

                                               Respondent - Appellant.




              Appeal from the United States District Court
         For the Eastern District of Texas, Texarkana Division

                             (5:00-CV-152)

                           February 26, 2003



Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     The State of Texas appeals the district court’s grant of

habeas corpus relief to Elroy Chester, who is currently on death



     *
      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this opinion should not be published and is not precedent except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.
row for the murder of Willie Ryman III.      Chester pleaded guilty to

capital murder and was sentenced to death by a Texas jury.           The

district court based its grant of habeas relief on the Supreme

Court’s recent decision in Atkins v. Virginia, 122 S.Ct 2242, 2252

(2002), where the Court held unconstitutional the execution of

mentally retarded individuals.        Chester raised two additional

claims for habeas relief at the district court level.1       Because the

district court granted habeas relief based on Atkins, it did not

address the merits of these claims.

     Both parties conclude that this case is controlled by our

recent decision in Bell v. Cockrell, 310 F.3d 330 (5th Cir. 2002).

We agree.    Although Atkins was decided after Chester’s judgment

became final, we held in Bell that the Atkins decision is an

exception to the Teague v. Lane non-retroactivity rule, and thus

applies retroactively     to   collateral   attacks,   including   habeas

relief.     Id. at 332.   In Bell, we further held that in state

capital cases where Atkins is applicable, the state court must

reaffirm or reimpose capital punishment prior to the defendant

seeking federal habeas relief.      Bell, 310 F.3d at 332.    The basis



     1
          The other claims were: (1) he was denied due process and
equal protection in violation of the Fourteenth Amendment because
the prosecution argued that Chester’s alleged mental retardation
could mitigate against life imprisonment and (2) he received
ineffective assistance from appellate counsel because counsel
failed to raise the previous claim.
for this holding is that the Atkins Court left it to the states to

define who is mentally retarded and to initially enforce this

constitutional restriction.         Atkins, 122 S.Ct. at 2250.           Although

Chester had previously raised his Eighth Amendment claim and

introduced evidence of mental retardation during sentencing, the

Texas courts never determined whether Chester was mentally retarded

and thus unable to be executed.           Therefore, unless the state court

reaffirms its decision to impose capital punishment after deciding

the defendant’s Atkins claim, the federal courts will not consider

habeas relief.        Consequently,       we   VACATE   the   decision    of    the

district court granting habeas relief.

     The State also requests that we instruct the district court to

dismiss the entire habeas petition without prejudice because the

state   court   has   not   yet    decided     Chester’s   Atkins   claim.        A

defendant must exhaust his state court remedies before filing for

federal habeas relief.       28 U.S.C. § 2254(b)(1)(A).         In addition, a

federal court may not consider a request for habeas relief from a

state-court     conviction    if    the    habeas   petition    contains       both

exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 514

(1982).   Here, because the state court has not ruled on the Atkins

claim, it is not yet exhausted.                Therefore, Chester’s habeas

petition contains both exhausted and unexhausted claims. Thus, the

district court may not consider Chester’s request for habeas
relief.

     Although the State requests that Chester’s habeas petition be

dismissed without prejudice, dismissal could result in a statute of

limitations bar for the defendant’s remaining claims. However, the

State has agreed to waive any available statute of limitations

defense for the remaining claims as long as these claims are filed

within the permissible time for seeking federal habeas relief on

the Atkins claim.2     Brief of Respondent-Appellant, at 27 n.12.

This Court will hold the State to its promise.   Therefore, Chester

will not be barred from asserting these remaining claims because

they may be re-filed if his Atkins claim is unsuccessful in state

court.    Consequently, we REMAND this case to the district court

with instructions to dismiss the habeas petition without prejudice.

         GRANT OF HABEAS VACATED; REMANDED WITH INSTRUCTIONS




     2
          The statute of limitations for the Atkins claim is one-
year from the date of the Atkins decision, which the Supreme Court
decided on June 20, 2002. 28 U.S.C. § 2244(d)(1)(C). Of course,
the limitation period will be interrupted during the pendency of
the state court’s review of the Atkins claim.           Thus, the
permissible time for filing the remaining claims will be extended
past June 20, 2003 when Chester files his Atkins claim in state
court.
