Because Steele did not raise this claim in his PDR, it is unexhausted. See Smith v. Quarterman, 515 F.3d 392, 402 (5th Cir. 2008); see also Holland v. Anderson, 230 F. App'x 374, 377-79 (5th Cir. 2007) (holding that, where petitioner raised claim in his state-court direct appeal concerning impartiality of the jury during punishment phase of trial and raised a similar claim in his § 2254 petition but applied the claim to the guilt/innocence phase of trial, claim was not properly exhausted). For the foregoing reasons, the judgment of the district court is VACATED and this matter is REMANDED for further proceedings consistent with this opinion.
Sheriff's Dep't, No. 23-2032, 2023 WL 9065083, at *1 (N.D. Tex. Oct. 30, 2023) (citing Deters, 985 F.2d at 795); see also 28 U.S.C. § 2254(b)(1)(B)(i); Holland v. Anderson, 230 Fed.Appx. 374, 378 n.2 (5th Cir. 2007); Green v. Patterson, 370 F.2d 560 (10th Cir. 1966); Garvey v. Casson, 423 F.Supp. 68, 70 (D. Del. 1976). Therefore, Bolden had no available state process to exhaust before presenting the claims asserted in his federal habeas petition.
In fact, directly contrary to Prystash's argument, the Fifth Circuit has "'consistently held that in capital cases peremptory challenges may be used to exclude those [prospective jurors] who express hesitancy about imposing the death penalty but whose exclusion for cause is forbidden by Witherspoon.'" Andrews v. Collins, 21 F.3d 612, 628 (5th Cir. 1994) (quoting Sonnier, 720 F.2d at 406); see also Holland v. Anderson, 230 F. App'x 374, 381 (5th Cir. 2007). As Justice O'Connor stated in her opinion concurring to the denial of certiorari in Brown v. North Carolina, "[p]ermitting prosecutors to take into account the concerns expressed about capital punishment by prospective jurors, or any other factor, in exercising peremptory challenges simply does not implicate the concerns expressed in Witherspoon."