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

                                                                            FILED
                                                                         January 23, 2008
                                     No. 06-41159
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

BYRON DION WHEELER

                                                  Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                                  Respondent-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:05-CV-294


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Byron Dion Wheeler, Texas inmate # 1239892, appeals, pro se, the denial
of his 28 U.S.C. § 2254 petition challenging his Texas conviction and sentence
for unlawful possession of a firearm by a felon.                Wheeler was granted a
certificate of appealability (COA) by the district court on one issue: whether he
received ineffective assistance of counsel when his trial counsel made tactical
and strategic decisions without conducting a thorough investigation of the law


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41159

and facts relevant to plausible options. A district court’s findings of fact on
requests for habeas corpus relief are reviewed for clear error, its rulings on
issues of law, de novo. E.g., Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001).
      Wheeler maintains his counsel provided ineffective assistance by coercing
him to plead guilty, despite the lack of an indictment. As this contention is not
based on a failure to investigate and was not included in Wheeler’s COA motion
to the district court, a COA was not granted on the issue; therefore, we may not
consider it. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
      Wheeler also maintains: his counsel provided ineffective assistance by
failing to investigate whether Wheeler’s firearm possession was justified by
necessity, and whether the firearm he possessed was a non-working weapon;
and, the record lacks a transcript of his plea proceedings. Again, Wheeler’s COA
application did not encompass these issues; we may not consider them. Id.
      Wheeler also maintains his counsel failed to adequately investigate the
State’s proof of Wheeler’s underlying felony conviction. The district court denied
this claim, which was raised in Wheeler’s Federal Rule of Civil Procedure 59(e)
motion following the denial of his § 2254 application.             “A fundamental
prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims
in state court prior to requesting federal collateral relief.” Smith v. Dretke, 422
F.3d 269, 275 (5th Cir. 2005) (citation omitted). “[W]here petitioner advances in
federal court an argument based on a legal theory distinct from that relied upon
in the state court, he fails to satisfy the exhaustion requirement”. Wilder, 274
F.3d at 259 (internal quotation marks and citation omitted). Wheeler did not
raise this theory of ineffective assistance of counsel in state court. See id. at 261.
      In any event, Wheeler’s assertion is unavailing, and we may affirm the
district court’s denial of habeas relief on the claim. See § 2254(b)(2); Miller v.
Dretke, 431 F.3d 241, 245 (5th Cir. 2005); Mercadel v. Cain, 179 F.3d 271, 276
(5th Cir. 1999). Wheeler does not dispute his counsel confirmed the validity of
his underlying conviction, and does not assert further investigation would have

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                                No. 06-41159

uncovered information his counsel did not know already. Wheeler also does not
maintain he would not have pleaded guilty but for the level of his counsel’s
investigation into his underlying conviction. Thus, he has not demonstrated as
unreasonable the state habeas court’s holding his counsel was not ineffective.
See § 2254(d); Strickland v. Washington, 466 U.S. 668, 688-89 (1984); Hill v.
Lockhart, 474 U.S. 52, 59 (1985).
      AFFIRMED.




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