IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-41223
Summary Calendar
HARWOOD EUGENE LOWE,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:97-CV-233
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December 22, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Harwood Eugene Lowe appeals from the district court’s
dismissal of his 28 U.S.C. § 2254 petition. He argues that the
district court erred by determining that his claim that he was
denied a fair trial because the state trial court denied his
request for a jury instruction on self-defense was procedurally
barred. We find that the district court erred by determining
that Lowe’s habeas claim was procedurally barred. Accordingly,
the district court’s judgment dismissing Lowe’s habeas petition
*
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that this opinion should not be published and is not precedent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. 98-41223
-2-
is vacated and the case is remanded for further proceedings. See
Sonnier v. Johnson, 161 F.3d 941, 946 (5th Cir. 1998); Whitehead
v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
VACATED AND REMANDED.