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.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:97-CV-233 -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.