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

                                                                   FILED
                                                                  May 19, 2010

                                  No. 09-70001                    Lyle W. Cayce
                                                                       Clerk

CLEVE FOSTER

                                            Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

                                            Respondent - Appellee



                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 4:07-CV-210


                     ON PETITION FOR REHEARING

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
O R D E R:
      Foster seeks panel rehearing in this Court’s previous denial of his
application for a Certificate of Appealability. His petition is DENIED.
      Foster contends that the court’s opinion improperly concluded that his
claim for ineffective assistance of state habeas counsel was procedurally barred.
We held that a number of Foster’s claims were defaulted because of his failure
to raise them in the state habeas proceeding. In his reply brief before this Court,
he claimed that ineffective assistance of state habeas counsel caused his failure
                                  No. 09-70001

to exhaust. Because the ineffective assistance claim was not raised in his initial
application, we concluded that it was not properly before the court.
      Foster now complains that he should not have been required to raise
exhaustion in his original Application for COA because failure to exhaust is an
affirmative defense that must first be asserted by the government. Further, he
alleges that because the district court ruled expressly and solely on the “merits”
of his habeas petition, he ought not be required to anticipate that the
government would reassert a procedural argument on appeal.
      We disagree. A litigant on appeal must point out relevant error in a
district court’s decision, even where the district court failed to address issues
previously briefed. See Essinger v. Liberty Mut. Fire Ins. Co., 534 F.3d 450 (5th
Cir. 2008). Any issue known to the appellant at the time of appeal is his
responsibility to raise. See id. Here, because the government raised the issue
of exhaustion in the district court, Foster was aware that it was pertinent to his
appeal. Accordingly, we maintain that Foster’s claim for ineffective assistance
of state habeas counsel is procedurally barred.
      The statement in our opinion that Foster did not present this argument
in the district court was in error. After the government presented exhaustion
as an affirmative defense in the district court, Foster responded to it. That
factual point, though, does not affect our analysis of his appellate duty to raise
the procedural point.
      Foster’s Petition for Panel Rehearing is DENIED.




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