REVISED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-20194

_______________

JOHN LEE SHUTE,

Petitioner-Appellant,

VERSUS

STATE OF TEXAS

and

TOMMY THOMAS,

Respondents-Appellees.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

July 3, 1997

ON REHEARING

Before R EYNALDO G. GARZA, SMITH, and EMILIO M. GARZA, Circuit

Judges.

JERRY E. SMITH, Circuit Judge:

Since the panel opinion was issued in this case, see Shute v.

Texas

, 113 F.3d 56 (5th Cir. 1997), the Supreme Court has held

§§ 101- 106 of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-212

(1996) (codified at 28 U.S.C. §§ 2244, 2253-2254), inapplicable to

non-capital habeas corpus petitions filed before the act’s

effective date of April 24, 1996. S ee Lindh v. Murphy

,

No. 96-6298, 65 U.S.L.W. 4557 (U.S. June 23, 1997). As

petitioner’s habeas petition pre-dated the act, he is not subject

to it. Although we reach the same result now as we did under the

AEDPA, Lindh substantially changes our reasoning. Accordingly, we

sua sponte withdraw our prior opinion and substitute the following:

John Shute was indicted for a lesser included offense after a

c onviction on the greater offense was reversed for insuffic ient

evidence of an aggravating element. The district court concluded

that the later indictm ent did not violate the Double Jeopardy

Clause of the Fifth Amendment and denied a writ of habeas corpus.

We affirm.

I.

In 1983, William Hill, a security officer for a public school

district, responded to a possible burglary at an elementary school.

He di d not discover any criminal activity but saw Shute and two

other persons standing across the street, even though it was past

2:00 a.m. Hill offered the men a ride home, and they accepted.

During the ride, Shute pulled out a gun, threatened to kill3

Hill, and ordered him to drive to a certain place. When they

arrived, Shute ordered Hill out of the ca r, then shot him in the

neck. Hill survived the attack.

II.

The state indicted Shute for attempted capital murder (the

“First Indictment”). This crime consists of all the elements of

attempted murder plus the following: (1) The victim was a “peace

officer”; (2) the victim was engaged in his official duty at the

time of the attack; and (3) the defendant knew the victim was a

peace officer. T E X

. P EN

. C ODE A NN

. § 19. 03(a)(1) (Vernon 1994)

(defining capital murder).

Shu te stipulated to his guilt of attempted murder but

contested the additional elements. He waived his right to a jury

trial and was convicted and sentenced in state court.

The state court of appeals reverse d, holding that the state

had provided insufficient evidence that Hill wa s engaged in his

official duty, as he was acting as a private security guard and not

as a peace officer. S ee Shute v. Texas

, No. C14-88-00630-CR,

1989 WL 14123, at *2 (Tex. App. SS Hous ton [14th Dist.] Feb. 23,

1989, writ ref'd) (not designated for publication).

The state then indicted Shu te for ordinary attempted murder

(the “Secon d Indictment”). The state trial court denied Shute'sSection 102 of the A ntiterrorism and Effective Death Penalty Act

(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996) (codified

at 28 U.S.C. § 2253), amended 28 U.S.C. § 2253 to requir e a certificate of

appealability (“COA”) b efore a final order in a habeas proceeding can be

appealed. In D rinkard v. Johnson

, 97 F.3d 751, 75 5-56 (5th Cir. 1996), c ert.

denied

, 117 S. Ct. 1114 (1997), we held that this requirement applies to a habeas

petitioner who, like Shute, had a request for a CPC pending on April 24, 1996,

the effective date of the AEDPA.

Recently, the Supreme Court has decided that “the amendments to chapter

153” apply only “to such cases as were filed after t he statute’s enactment.”

Lindh v. Murphy , No. 96-6298, 65 U.S.L.W. 4557, 4558 (U.S. June 23, 1997). As

§ 2253 is a part of chapter 153, L indh effectively overrules D rinkard on this

point. Because Shute filed his non-capital habeas petition well before April 24,

1996, none of the AEDPA’s requirements apply to him.

We granted Shute both a CPC and a COA. The CPC is sufficient to vest

jurisdiction in this court.

4 habeas petition that was based on double jeopardy grounds, but the

court of appeals granted relief. S ee Shute v. Texas

, 812 S.W.2d 61

(Tex. App. SS

Houston [14th Dist.] 1991). The Court of Criminal

Appeals vacated and r emanded for reconsideration in light of E x

parte Granger

, 850 S.W.2d 513 (Tex. Crim. App. 1993) (en banc).

See Shute v. Texas , 857 S.W.2d 55 (Tex. Crim. App. 1993).

On remand, the court of appeals affirmed the denial of habeas

relief. S ee Shute v. Texas , 858 S.W.2d 606 (Tex. App. SS Houston

[14th Dist.] 1993) (“ Shute IV ”). The Court of Criminal Appeals

accepted review again and affirmed. S ee Shute v. Texas

, 877 S.W.2d

314 (Tex. Crim. App. 1994) (en banc) (“ Shute V ”).

Shute then filed a habeas petition in federal court. The

district court denied relief, and we granted Shute a certificate of

probable cause to appeal (“CPC”) on August 2, 1996. 1

In the meantime, the indictment against Shute w as dismissed5

for technical reasons. The state secured a new indictment for

attempted murder (the “Third Indictment”) . Shute pleaded guilty

and was sentenced. He appealed that conviction in state court on

the ground that collateral estoppel bars a deadly-weapon finding.

That appeal was denied. See Shute v. Texas , 945 S.W.2d 230 (Tex.

App. SS Houston [1st Dist.] 1997, pet. filed).

III.

At the outset, we sua sponte examine whether this matter is

moot. The cornerstone of the mootness doctrine is that a

controversy must be live and ongoing throughout its adjudication,

which means that it must “touch[] the legal relations of parties

having adverse legal interests” in the outcome of the case.

DeFunis v. Odegaard

, 416 U.S. 312, 317 (1974) (per curiam)

(internal quotation marks omitted) (quoting Aetna Life Ins. Co. v.

Haworth , 300 U.S. 227, 240-41 (1937)).

In federal court, Shute sought a writ of habeas corpus on

double jeopardy grounds. This entailed two requests: (1) an order

of release from custody and (2) an injunction against state

prosecution. S ee Showery v. Samaniego

, 814 F.2d 200, 201 n.5 (5th

Cir. 1987). Thus, he sought both immediate and future relief.

The dismissal of the Second Indictment did not render the

controversy m oot. “Jurisdiction over a plaintiff’s claims for6

future relief is appropriate only if a reasonable likelihood exists

that the plaintiff will again be subjected to the allegedly

unconstitutional actions.” Wallace v. Texas Tech Univ. , 80 F.3d

1042, 1047 n.3 (5th Cir. 1996) (citing Honig v. Doe

, 484 U.S. 305,

317-18 (1988)). Because the state sought a new indictment, Shute

was likely to be subjected to the same actions.

Once the state se cured the Third Indictment, both forms of

requested relief were live again. Shute still wanted release from

custody and still wanted an in junction against prosecution.

Although any state prosecution would be under a different

indictment from the one attacked before the district court, this

cannot make a difference. If the district court had granted the

injunction against state prosecution under the Second Indictment,

prosecution under t he Third Indictment would be barred as well.

Otherwise, the state always could defeat a federal double jeopardy

habeas ruling by dismissing an indictment and immediately securing

an identical one.

Shute’s request for injunctive relief no longer is live, as he

has pleaded guilty to the charge in the Third Indictment and,

therefore, there is no prosecution to enjoin. His request for

relief from custody, however, remains a live controversy as long as

he is imprisoned.

IV.7

T itle 28 U.S.C. § 2254(b)-(c) requires a state prisoner to

e xhaust available state remedies before seeking federal habeas

relief. The state has not raised exhaustion, but we have the

discretion to refuse the implicit waiver and apply the exhaustion

requirement sua sponte

. S ee Graham v. Joh nson , 94 F.3d 958, 970

(5th Cir. 1996) (per curiam); McGee v. Estelle

, 722 F.2d 1206, 1214

(5th Cir. 1984) (en banc).

To exhaust available state remedies, a habeas petitioner “must

fairly apprise the highest court of his state of the federal rights

which were allegedly violated.” Deters v. Collins , 985 F.2d 789,

795 (5th Cir. 1993). When a state prisoner properly presents his

federal claim to the highest state court on direct review, he need

not ask for state collateral relief on the same ground and on the

same evidence. S ee Sones v. Hargett

, 61 F.3d 410, 415 (5th Cir.

1995); Myers v. Collins , 919 F.2d 1074, 1075-77 (5th Cir. 1990).

Shute sought a pre-trial state habeas writ, raising his double

jeopardy claim. S ee Ex parte Rathmel l , 717 S.W.2d 33, 34 (Tex.

Crim. App. 1986) (en banc) (stating that a pre-trial habeas

petition is the appropriate vehicle by which to review a double

jeopardy claim). His double jeopardy claim has been before the

Texas Court of Criminal Appeals twice. So, he need not raise it on

direct appeal and is not barred from relief by the exhaustionFor the first time at oral argument, the state argued that habeas relief

is barred because the county transferred Shute from the custody of the H a rris

County sheriff to the cust ody of the State of Texas while this appeal was

pending. Even aside from the fact that the state is a respondent in this action

and was served with process, the state cannot defeat federal habeas review merely

by unilaterally transferring the prisoner to the custody of another state actor.

See Schultz v. United States

, 373 F.2d 524, 524 (5th Cir. 1967) (per curiam) (“We

think it clear that such a transfer cannot divest this court of jurisdiction to

review the denial of appellant’s petition.”); cf. F ED

. R. A PP

. P. 23(a) (“Pending

review of a de cision in a habeas corpus proceeding commenced before a court,

justice or judge of t he United States for the release of a prisoner, a person

having custody of the prisoner shall not transfer custody to another unless such

transfer is directed in accordance with the provision of this rule.”).

The district court ordered the state to provide copies of the indictments

with its answer, but the state filed a motion to dismiss instead of an answer.

8 doctrine. 2

V.

A.

Although a defendant who pleads guilt y ordinarily may not

challenge his conviction on coll ateral review, s ee Taylor v.

Whitley

, 933 F.2d 325, 327 (5th Cir. 1991), he may do so when “the

indictment was facially duplicative of the earlier offense of which

the defendant had been [tried] . . . .” U nited States v. Broce

,

488 U.S. 563, 575 (1989); accord Taylor

, 933 F.2d at 327. This is

true even when he pleaded guilty after first raising his double

je opardy argument. S ee Menna v. New York

, 423 U.S. 61, 61-62

(1975) (per curiam).

Unfortunately, the record on appeal does not include any of

the three indictments. 3 The Texas courts have held that the Second

Indictment alleges a lesser included offense of the FirstThis principle applies to state as well as federal pro secutions. S ee

Hudson v. Louisiana , 450 U.S. 40, 42 n.3 (1981).

9 In dictment. S ee Shute IV

, 858 S.W.2d at 608. Neither party has

argued that there is any substantive difference between the Second

and Third Indictments, so we treat the Third Indictment, under

which Shute was sentenced, as alleging a lesser included offense of

the crime charged in the First Indictment.

B.

1.

A double jeopa rdy claim is a question of law. S ee United

States v. Cluck

, 87 F.3d 138, 140 (5th Cir. 1996) (per curiam). In

a habeas context, we review the district court’s determinations of

law de novo

. S ee Dison v. W hitley , 20 F.3d 185, 186 (5th Cir.

1994).

G enerally, if a defendant obtains a reversal of his

conviction, double jeopardy does not bar a retrial. S ee United

States v. Ball

, 163 U.S. 662, 671-72 (1896). If the conviction is

reversed for insufficient evide nce of guilt, however, double

jeopardy does bar retrial. S ee Burks v. United States

, 437 U.S. 1,

18 (1978). This is because a finding of insufficient evidence of

guilt means that the trial court should have entered a judgment of

acquittal, which would have barred retrial. See id . at 11. 4

For double je opardy purposes, a lesser included offense is10

considered to be the same crime as the greater offense. S ee Harris

v. Oklahoma

, 433 U.S. 682, 682-83 (1977) (per curiam). Therefore,

had the trier of fact simply acquitted Shute of attempted capital

murder, the state could not prosecute him for attempted murder. In

analyzing the particular double jeopardy question presented,

however, it is important to examine the various possibilities.

If the trier of fact had found that Shute lacked intent, it

necessarily would have acquit ted him of both attempted capital

murder and attempted murder, as the lack of that element negates

both crimes. Similarly, if the court had found insufficient

evidence that Shute had intent, it would have entered an acquittal

for both crimes. Thus, an appellate judgment of insufficient

evidence on the intent element would require an acquittal on both

counts and would bar retrial.

If, on the other hand, the tr ier of fact had found all

elements except the official duty element, it would have acquitted

Shute of attempted capital murder and convi cted him of attempted

murder. Similarly, if the court had found insufficient evidence of

the official duty element, it would hav e acquitted on attempted

capital murder but would have allowed the trier of fact to consider

the crime of attempted murder. Under this scenario, the trier of

fact would have convicted Shute of the attempted murder. Because

an appe llate judgment of insufficient evidence on a particular

element is the equivalent of a trial court judgment of insufficientSee United States v. Skipper

, 74 F.3d 608, 611-12 (5th Cir. 1996) (stating

that, in the federal system, the appellate court may direct a conviction on the

lesser included offense if it finds insufficient evidence of one of the extra

elements); see also Dickenson v. Israel

, 644 F.2d 308, 309 (7th Cir. 1981) (per

curiam) (stating that a state may do the same).

Texas follows the rule that, if the state did not request or receive an

instruction on the lesser included offense at the first trial, it is deemed to

have abandoned the lesser included offense and may not try the defendant again.

See Stephens v. Texas

, 806 S.W.2d 812, 817-18 (Tex. Crim. App. 1990) (en banc).

If the state requested or received such an instruc tion, however, it may reprosecute on the lesser included offense. S ee Granger

, 850 S. W.2d at 520.

Because Shute was tried without a jury, there were no jury instructions, and the

judge was authorized to convict on a lesser included offense. S ee Cunningham v.

T exas

, 726 S.W.2d 151, 153 (Tex. Crim. App. 1987) (en banc). Und er such

circumstances, the prosecution is not required to seek an y instructions. S ee

Shute V , 877 S.W.2d at 315.

11 evidence, see Burks , 437 U.S. at 11, the same result should occur

when the appellate court finds insufficient evidence. 5

The wrinkle arises from the state appellate court’s resolution

of this case. The court entered an acquittal for attempted capital

murder but did not enter a conviction for the crime of attempted

murder, even though the trier of fact had found all the elements of

that crime beyond a reasonable doubt. 6

2.

The Eleventh Circuit has addressed this very issue and found

that the Double Jeopardy Clause does not bar retrial. S ee Beverly

v. Jones , 854 F.2d 412, 416 (11th Cir. 1988). The court reasoned

that, bec ause the state appellate court could have imposed a

conviction on the defendant, it had the power to give him another

chance at acquittal:

Moreover, this is not a case in which the State wasA lthough no other circuit has addressed this issue, the Ninth Circuit has

confronted a similar question. The jury, which was instructed on various lesser

included offenses, acquitted on first degree murder but deadlocked on the lesser

included offenses. S ee United States v. Gooday

, 714 F.2d 80, 81 (9th Cir. 1983).

The court held that double jeopardy did not bar retrial on the lesser included

offenses. See id. at 83. Gooday is a stronger case for a double jeopardy bar

than is Beverly or the instant case, as Gooday never was convicted of anything,

while Beverly and Shute were found guilty beyond a reasonable doubt of every

element of the lesser included offense.

12 presented with multiple opportunities to convict and

punish an individual for a single offense; rather, quite

the opposite is true. At his request, [the defendant]

was given another chance to re but the State’s evidence

that he commi tted the [lesser included offense] even

though the State had already obtained a conviction for

that offense.

Id. at 415. 7

We agree with the Eleventh Circuit’s cogent analysis. Even

though Shute stipulated to the elements of attempted murder at his

first trial, the state took upon itself the burden of proving those

elements at retrial. The state had no obligation to grant Shute an

opportunity to obtain an acquittal for a crime of which he already

had been convicted. Shute cannot complain now of this act of

judicial grace.

AFFIRMED.