REVISED NOVEMBER 15, 2007

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

                                                             FILED
                      No. 05-50596                       November 9, 2007
                    Summary Calendar
                                                       Charles R. Fulbruge III
                                                               Clerk

HECTOR LUIS MARTINEZ, JR

                                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 Western District of Texas
                   USDC No. 6:03-CV-48
                   USDC No. 6:03-CV-52


Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.
                                No. 05-50596

PER CURIAM:*
     Hector Luis Martinez, Jr., Texas prisoner # 1006536, was
convicted by a jury of capital murder and was sentenced to life in
prison. Martinez filed a 28 U.S.C. § 2254 application challenging his
murder conviction. A judge of this court granted a certificate of
appealability (COA) on the issue whether the district court erred by
finding that Martinez failed to exhaust his state remedies on his
claims that the jury instruction on reasonable doubt was faulty, that
he was convicted by admission of a coerced confession, and that trial
counsel was ineffective for failing to object to the prosecutorial
misconduct. On appeal from the denial of a § 2254 application, this
court reviews the district court’s findings of fact for clear error and
conclusions of law de novo. Robertson v. Cain, 

, 301
(5th Cir. 2003).
     Applicants seeking federal habeas relief under § 2254 are
required to exhaust all claims in state court prior to requesting
federal collateral relief. Whitehead v. Johnson, 

, 387
(5th Cir. 1998). To have exhausted his state remedies, a petitioner
“must have fairly presented the substance of his claim to the state
courts.” Nobles v. Johnson, 

, 420 (5th Cir. 1997) (citing
Picard v. Connor, 

, 275-76 (1971)).



     *
      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should not be published and is not precedent except under the limited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.

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                             No. 05-50596

     In his state habeas application, Martinez asserted that the jury
instruction on reasonable doubt was faulty and that it deprived him
of a fair and impartial trial. Martinez argued that the instruction
was redundant, confusing, and logically flawed.       In his § 2254
application, Martinez argued that the reasonable doubt instruction
was constitutionally deficient because it was redundant, confusing,
and logically flawed.    The district court    found correctly that
Martinez did not make specific citation to the Fifth and Fourteenth
Amendments in his state court pleadings. Nevertheless, a reading
of the two pleadings shows that they make the same complaint, that
Martinez was denied a fair trial, and are based on the same factual
allegations. This is not a case of Martinez making a technical
argument based on state evidentiary law in state court and then
arguing the same facts to show a constitutional violation in federal
court. See Wilder v. Cockrell, 274 F.3d, 255, 259-60 (5th Cir. 2001).


     On direct appeal, Martinez argued that his confession was
inadmissable because he was not warned properly of his
constitutional rights. Specifically, he asserted that erroneous advice
given by the police officer, in addition to the required warning under
Miranda v. Arizona, 

(1966), nullified the warning. In
his § 2254 application, Martinez made the same argument.
Although the district court found that the constitutional arguments
made to the federal and state courts were different, both are based


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                             No. 05-50596

on the same premise, that Martinez was questioned in violation of
Miranda.
     In his state habeas application, Martinez asserted that trial
counsel was ineffective for failing to object to the prosecutorial
misconduct.    Martinez argued that counsel’s performance was
ineffective under Strickland v. Washington, 

(1984). In
his § 2254 application, Martinez made the same argument.
     Martinez’s arguments in state and federal court on these points
are substantially similar and the claims were presented fairly to the
state courts. Martinez has shown that the district court erred by
finding that he failed to exhaust his state remedies on his claims
that the jury instruction on reasonable doubt was faulty, the he was
convicted by admission of a coerced confession, and that trial counsel
was ineffective for failing to object to the prosecutorial misconduct.
The judgment of the district court is VACATED and the matter is
REMANDED for consideration of Martinez’s § 2254 application in
the light of these three exhausted claims.
     Martinez’s motion for appointment of counsel on appeal is
DENIED as unnecessary.




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