United States Court of Appeals

Fifth Circuit

FILED

February 12, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-11457 

LEON JOHNSON,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, Director, Texas Department of Criminal

Justice, Correctional Institutions Division

Respondent-Appellee.

Appeal from the United States District Court

For the Northern District of Texas 

(USDC No. 3:03-CV-139)

Before HIGGINBOTHAM, SMITH, and DeMOSS Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Leon Johnson, Texas inmate # 885020, appeals the district

court’s denial of his 28 U.S.C. § 2254 petition, which challenged

his convictions and sentences for delivery of one gram or more but

less than four grams of cocaine, delivery of less than one gram of

cocaine, and possession of one gram or more but less than four

grams of cocaine. Johnson was sentenced to concurrent terms of 25,

20, and 25 years of imprisonment respectively.
1Haines v. Kerner, 404 U.S. 519, 520 (1972).

2Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

2

Johnson was granted a certificate of appealability by this

court on the issue of whether he had “exhausted the claim that his

trial counsel was ineffective for failing to challenge the arrest

and search warrants because his name had been illegally added.” In

availing himself of this appeal, however, Johnson mistakenly

focuses on merits of his ineffective-assistance claim, not on the

exhaustion question for which the COA was granted. Hence the

government urges waiver.

We disagree. Briefs by pro se litigants are afforded liberal

construction,1 though even pro se litigants must brief arguments to

preserve them.2 Johnson’s brief is plainly confused, but it does

enough, when liberally construed, to bring the exhaustion question

before this court. For example, Johnson's “Statement of Facts”

argues that, on direct review, he raised before the Fifth District

Court of Appeals (Dallas) the question of whether “(1) The search

warrant use by the police was invalid; (2) He received ineffective

assistance of counsel.” And later in the same section, Johnson

argues that he raised these same two issues in his petition for

discretionary review to Texas Court of Criminal Appeals. Finally,

in the “Argument” section, Johnson details how these issues were

raised before the trial court, “The appellant wrote a letter to the

trial judge . . . explaining the existing conflict of interest
3

trial counsel had with appellant . . . appellant explained to the

court how he asked trial counsel to secure an examining trial for

the purpose of determining the legality of the arresting officer

writing the appellant's name into the affidavit for arrest and

search warrant.” 

We will therefore reach the merits of the exhaustion question.

In doing so, we conclude that Johnson, on direct appeal, did

exhaust the claim that his lawyer was ineffective for failing to

challenge the warrant’s validity on the grounds that the police

officers added his name. The state records indicate that instead

of filing a direct appeal, Johnson’s counsel filed an Anders brief

requesting permission to withdraw. Johnson responded to counsel’s

brief and asserted that the search and arrest warrants were invalid

and that trial counsel was ineffective for not challenging the

arrest warrant when it was determined that a police officer altered

the warrant by adding Johnson’s name. Later, in Johnson’s petition

for discretionary review, Johnson asserted that the search and

arrest warrants were invalid. Within this line of argument,

Johnson discussed the law of ineffective assistance of counsel and

asserts that a police officer may not alter a warrant in an attempt

to particularize it.

Johnson’s ineffective-assistance claim was fairly presented to

the Texas Court of Criminal Appeals, giving it an opportunity to

address the alleged deprivation of Johnson’s federal constitutional
3Castille v. Peoples, 489 U.S. 346, 349 (1989).

4

rights.3 The judgment of the district court is REVERSED. The case

is REMANDED for an examination of the merits of Johnson’s

ineffective-assistance claim.