     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.




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