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.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:03-CV-354-MB
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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this opinion should not be published and is not precedent except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
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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
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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
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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.