                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 18, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-60740
                         Summary Calendar


FRAGEPANI BELL,

                                    Petitioner-Appellant,

versus

LAWRENCE KELLY, Superintendent of Mississippi State
Penitentiary,

                                    Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                     USDC No. 2:03-CV-354-MB
                       --------------------

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Fragepani Bell, Mississippi State Prisoner # K5072, appeals

the district court’s denial of his 28 U.S.C. § 2254 application

in which he challenged his conviction of sexual battery and

attempted sexual battery.   This court granted Bell a certificate

of appealability (COA) on whether the district court erred when

it determined that Bell had failed to exhaust whether the

prosecution violated Brady v. Maryland, 373 U.S. 83 (1963),

whether his counsel was ineffective, and whether the trial judge


     *
       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this opinion should not be published and is not precedent except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. 04-60740
                                  -2-

was biased.   This court denied a COA on whether Bell was

convicted by a biased jury.

     Bell argues that he raised whether the prosecution violated

Brady v. Maryland, 373 U.S. 83 (1963), whether his counsel was

ineffective, and whether the trial judge was not impartial in his

post-conviction motion that was filed with the Mississippi

Supreme Court.

     Bell alleged in his state post-conviction motion that the

state withheld key evidence when it failed to produce the

“Brackin” discovery, which he contends is exculpatory evidence.

He therefore fairly raised the issue of whether the prosecution

violated Brady.   The district court therefore erred when it

determined that Bell did not exhaust this issue.     See Deters v.

Collins, 985 F.2d 789, 795 (5th Cir. 1993).

     Regarding his allegation of ineffective assistance of

counsel, Bell alleged in his 28 U.S.C. § 2254 application that he

received ineffective assistance of counsel at trial and when

counsel failed to secure a complete copy of his trial transcript.

In his state motion for post-conviction relief Bell argued that

he received ineffective assistance of counsel because counsel

conspired with the state and the judge when they withheld

Brackin’s testimony.   He also complained in his state motion that

his counsel was ineffective during jury selection.    He argued

that the cumulative effect of counsel’s errors deprived him of

his constitutional rights.    He argued that he was denied
                            No. 04-60740
                                 -3-

effective assistance of counsel due to counsel’s “failure to

investigate the factual circumstances surrounding the alleged

crime and provide him with a basic defense.”     As these arguments

are allegations that he received ineffective assistance of

counsel at trial, the district court erred when it determined

that Bell had failed to exhaust this issue.     See Whitehead v.

Johnson, 157 F.3d 384, 387 (5th Cir. 1998).

     However, Bell did not argue in his state post-conviction

motion that his attorney was ineffective for failing to secure a

complete copy of the trial transcript.     In his state motion he

contends that the trial transcript was not completed by the court

reporter.   He does not blame his attorney for this purported

error.   Therefore, the district court did not err when it

determined that Bell had failed to exhaust this issue.

     Additionally, Bell argued in his state post-conviction

application that the judge conspired with the state and his

defense counsel to withhold relevant, exculpatory information.

He also argued that the district court showed bias against him by

concealing “all the information that would have resulted in a

different verdict.”   These arguments fairly raise the issue

whether the trial judge was impartial.     The district court

therefore erred when it determined that Bell failed to exhaust

this issue.   See Whitehead, 157 F.3d at 387.

     Finally, Bell has briefed issues that this court did not

include in its COA grant.   This court need not consider issues
                            No. 04-60740
                                 -4-

that Bell has briefed but that are beyond the scope of the issues

upon which a COA was granted.   See Ott v. Johnson, 192 F.3d 510,

512 n. 6 (5th Cir. 1999).

     The district court’s judgment that Bell failed to exhaust

whether his attorney was ineffective for failing to secure a

complete copy of the trial transcript is AFFIRMED.   The district

court’s judgment that Bell failed to exhaust whether the

prosecution violated Brady, whether he received ineffective

assistance of counsel at trial, and whether the trial judge was

biased is VACATED.   The case is REMANDED so that the district

court can consider the substance of Bell’s habeas claims that the

prosecution violated Brady, he received ineffective assistance of

counsel at trial, and the trial judge was biased.

     AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
