UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 99-30758 Summary Calendar ____________________

ROBERT SPENCER,

Petitioner-Appellant, versus

BURL CAIN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Middle District of Louisiana (97-CV-328-C) _________________________________________________________________

September 11, 2000

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Louisiana prisoner Robert Spencer (# 104531) appeals from the

dismissal, for failure to exhaust state remedies, of his

habeas petition. Our court granted Spencer a certificate of

appealability on whether the district court erred in concluding

Spencer failed to exhaust his claim that the state trial court

denied him a fair trial by erroneously instructing the jury on

conspiracy.

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. “A fundamental prerequisite to federal habeas relief under §

2254 is the exhaustion of all claims in state court prior to

requesting federal collateral relief.” Whitehead v. Johnson,

(5th Cir. 1998). Exhaustion requires that the

federal claim be “fairly presented” to the highest court of the

State, either on direct review or in a postconviction proceeding.

Carter v. Estelle,

(5th Cir. 1982) (internal

quotation marks and citations omitted), cert. denied,

(1983).

To do so “the federal habeas petitioner must have provided the

state courts with a fair opportunity to apply controlling legal

principles to the facts bearing upon his constitutional claim”.

Nobles v. Johnson,

(5th Cir. 1997) (internal

quotation marks and citation omitted), cert. denied,

(1998). And, the claim presented in federal court “must be the

substantial equivalent” of that presented to the state courts.

Whitehead,

( citation omitted). Along this line,

and although the habeas petitioner “need not spell out each

syllable of the claim before the state court”,

“[i]t is not

enough that all the facts necessary to support the federal claim

were before the state courts, ... or that a somewhat similar state-

law claim was made”. Anderson v. Harless,

(1982)

(emphasis added).

- 2 - Spencer did present, on direct appeal, a jury-instruction

claim somewhat similar to the one he is presenting in federal

court. The claim in state court was presented, however, only in

the most conclusory fashion and was supported by neither federal

constitutional nor even state legal authority. In short, the claim

was not “fairly presented” to the state courts; therefore, it

remains unexhausted. See Anderson,

.

Accordingly, the judgment of the district court is

AFFIRMED.

- 3 -