United States Court of Appeals,

Fifth Circuit.

No. 96-20194.

John Lee SHUTE, Petitioner-Appellant,

v.

STATE OF TEXAS and Tommy Thomas, Respondents-Appellees.

May 29, 1997.

Appeal from the United States District Court for the Southern District of Texas.

Before REYNALDO G. GARZA, SMITH and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

John Shute was indicted for a lesser included offense after a conviction on the greater offense

was reversed for insufficient evidence of an aggravating element. The district court concluded that

the later indictment 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 did 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 kill Hill, and ordered him to drive to

a certain place. When they arrived, Shute ordered Hill out of the car, 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 o f attempted murder plus the following: (1) The victim was a "peace

o fficer"; (2) t he 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 ENAL C ODE A NN

. § 19.03(a)(1) (Vernon 1994)1 Under the recent amendments to the federal habeas statute, see Antiterrorism and Effective

Death Penalty

Act of 1996, § 102, Pub.L. No. 104-132, 110 Stat. 1214, 1217-18 (1996)

("AEDPA") (to be codified at 28 U.S.C. § 2253), a habeas petitioner must receive a COA to

appeal a denial of habeas relief. This requirement applies to petitioners who, like Shute, had a

request for a certificate of probable cause pending on April 24, 1996, the effective date of the

AEDPA. See Drinkard v. Johnson, 97 F.3d 751, 755-56 (5th Cir.1996), cert. denied, --- U.S. ---

-, 117 S.Ct. 1114, --- L.Ed.2d ---- (1997). (defining capital murder).

Shute 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 reversed, holding that the state had provided insufficient evidence

that Hill was 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, 1 989 WL 14123, at *2

(Tex.App.—Houston [14th Dist.], Feb. 23, 1989, writ ref'd).

The state then indicted Shute for ordinary attempted murder (the "Second Indictment"). The

state trial court denied Shute's 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.—Houston [14th Dist.]

1991). The Court of Criminal Appeals vacated and remanded for reconsideration in light of E x parte

Granger, 850 S.W.2d 513 (Tex.Crim.App.1993). S ee 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.—Houston [14th Dist.] 1993) (" Shute IV "). The Court of Criminal Appeals

accepted review again and affirmed. S ee Sh ute v. Texas, 877 S.W.2d 314 (Tex.Crim.App.1994)

(" Shute V ").

Shute then filed a habeas petition in federal court. The district court denied relief, and we

granted Shute a certificate of appealability ("COA") on August 2, 1996. 1

In the meantime, the indictment against Shute was dismissed for technical reasons. The state

secured a new indictment for attempted murder (the "Third Indictment"). Shute pleaded guilty and

was sentenced. He has appealed that conviction in state court on the ground that collateral estoppel

bars a deadly-weapon finding.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 outcom e

of the case. D eFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974)

(per curiam) (internal quotati on marks omitted) (quoting Aetna Life Ins. Co. v. Haw orth, 300 U.S.

227, 240-41, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937)).

In federal court, Shute sought a writ of habeas corpus on double jeopardy grounds. This

ent ailed two requests: (1) an order of release from custody and (2) an injunction against st at e

prosecution. See Show ery 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 for future relief is appropriate only if a reasonable likelihood exists that the

plaintiff will again be subjected to t he allegedly unconstitutional actions." W allace v. Texas Tech

Univ., 80 F.3d 1042, 1047 n. 3 (5th Cir.1996) (citing Honig v. Doe, 484 U.S. 305, 317-18, 108 S.Ct.

592, 601, 98 L.Ed.2d 686 (1988)). Because the state sought a new indictment, Shute was likely to

be subjected to the same actions.

Once the state secured the Third Indictment, both forms of requested relief were live again.

Shute still wanted release from custody and still wanted an injunction against prosecution. Although

any state prosecution would be under a different indictment from the one attacked before the district

court, thi s canno t make a difference. If the district court had granted the injunction against state

prosecution under the Second Indictment, prosecution under the 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, t here is no prosecution to enjoin. His request for relief from

custody, however, remains a live controversy as long as he is imprisoned.2 The new standards of review contained in § 104 of the AEDPA and codified at 28 U.S.C. §

2254(d) do not have retroactive effect and thus apply to all habeas petitions pending on April 24,

1996. See Drinkard, 97 F.3d at 764-66. The same reasoning should apply to the AEDPA's

amendments to 28 U.S.C. § 2254(b). Under the old law, a state could waive exhaustion

implicitly, but we had the discretion to refuse that waiver and apply the exhaustion requirement

sua sponte. See Graham v. Johnson, 94 F.3d 958, 970 (5th Cir.1996) (per curiam); McGee v.

Estelle, 722 F.2d 1206, 1214 (5th Cir.1984) (en banc). Therefore, a habeas petitioner could not

have relied on the old exhaustion rule "in making strategic, tactical, or other decisions during the

state court litigation." Drinkard, 97 F.3d at 766. The new exhaustion requirement has no

retroactive effect and must be applied to all pending habeas petitions.

3 For the first time at oral argument, the state argued that habeas relief is barred because the

county transferred Shute from the custody of the Harris County sheriff to the custody 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. IV.

Title 28 U.S.C. § 2254(b)-(c) requires a state prisoner to exhaust available state remedies

b efore seeking federal habeas relief. Under the recent amendments to the habeas statute, s e e

AEDPA, § 104, 2 t he exhaust ion requirement is waived not implicitly but only when "the State,

through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3).

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." D eters v. Collins, 985 F.2d 789, 795

(5th Cir.1993). When a state prisoner properly presents his federal claim to the highest state court

o n 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); M yers 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

Rathmell, 71 7 S.W.2d 33, 34 (Tex.Crim.App.1986) (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 exhaustion doctrine. 3

V.

A.4 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. Although a defendant who pleads g uilt y o rdinarily may not challenge his conviction on

collateral review, see 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 [tri ed]...."

United States v. Broce, 488 U.S. 563, 575, 109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989); a ccord

Taylor, 933 F.2d at 327. This is true even when he pleaded guilty aft er first raising his double

jeopardy argument. S ee Menna v. New York, 423 U.S. 61, 61-62, 96 S.Ct. 241, 241-42, 46 L.Ed.2d

195 (1975) (per curiam).

Unfortunately, the record on appeal does not include any of the three indictments. 4 The Texas

courts have held that the Second Indictment alleges a lesser included offense of the First Indictment.

See 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.

Outside the context of habeas review, a double jeopardy claim is a question of law reviewed

de novo. See United States v. Cluck, 87 F.3d 138, 140 (5th Cir.1996) (per curiam). Shute's claim,

however, was adjudicated on the merits in the Texas courts. According to 28 U.S.C. § 2254(d)(1),

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the United

States....

The "contrary to" prong of 28 U.S.C. § 2254(d)(1) appl i es to questi ons of l aw. S ee, e.g.,

Blankenship v. Johnson, 106 F.3d 1202, 1205 n. 4 (5th Cir.1997); Lockhart v. Johnson, 104 F.3d

54, 57 (5th Cir.1997); Drinkard, 97 F.3d at 768.

In regard to Shute, the Texas courts ruled that the Double Jeopardy Clause does not bar thetrial, for a lesser included offense, of a criminal defendant whose conviction of a greater offense was

reversed for insufficient evidence of one of the aggravat i ng elements. The operative question is

whether this resolution is contrary to clearly established Supreme Court precedent.

First, we must decide what constitutes "clearly established Federal law, as determined by the

Supreme Court." Second, we must determine whether Texas's adjudication of Shute's claim was

contrary to that law.

2.

Generally, 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, 16 S.Ct. 1192, 1195-96, 41 L.Ed. 300

(1896). If the conviction is reversed for insufficient evidence of guilt, however, double jeopardy does

bar retrial. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978).

This is because a finding of insufficient evidence of guilt means that t he trial court should have

entered a judgment of acquittal, which would have barred retrial. See id. at 11, 98 S.Ct. at 2147.

For double jeopardy purposes, a lesser included offense is considered to be the same crime

as the greater offense. S ee Harris v. Oklahoma, 433 U.S. 682, 682-83, 97 S.Ct. 2912, 2912-13, 53

L .Ed.2d 1054 (1977) (per curiam). Therefore, had the trier of fact simply acquitted Shute o f

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 exami ne the vari ous

possibilities.

If the trier of fact had found that Shute lacked intent, it necessarily would have acquitted him

of both attempted capital murder and attempted murder, as the lack of t hat element negates both

crimes. Similarly, if the court had found insufficient evidence that Shute had intent, it would have

ent ered an acquittal for both crimes. Thus, an appellate judgment of insufficient evidence o n t he

intent element would require an acquittal on both counts and would bar retrial.

If, on the other hand, the trier of fact had found all elements except the official duty element,

it would have acquitted Shute of attempted capital murder and convicted him of attempted murder.

Similarly, if the court had found insufficient evidence of the o ffic ial duty element, it would have5 See 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).

6 See Blankenship, 106 F.3d at 1206 (stating that, where reasonable jurists could differ, there is

no clearly established law); cf. Mata v. Johnson, 99 F.3d 1261, 1268 (5th Cir.1996) ("[A]

reasonable, good faith application of Supreme Court precedent will immunize the state court

conviction from federal habeas reversal, even if federal courts later reject that view of the

applicable precedent."), modified in part on other grounds, 105 F.3d 209 (5th Cir.1997) (per

curiam).

7 Although 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. See 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. 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 convict ed Shut e o f the

attempted murder. Because an appellate judgment of insufficient evidence on a particular element

is the equivalent of a trial court judgment of insufficient evidence, see Burks, 437 U.S. at 11, 98 S.Ct.

at 2147, the same result should occur when the appellate court finds insufficient evidence.

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. 5

Faced with the aforementioned Supreme Court precedent, a reasonable jurist could conclude

that the Double Jeopardy Clause allo ws ret rial in this situation. 6 Our confidence in this result is

buttressed by the Eleventh Circuit's approval of retrial in this circumstance:

Moreover, this is not a case in whic h t he St ate was 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 rebut the State's

evidence that he committed the [lesser included offense] even though the State had already

obtained a conviction for that offense.

Beverly v. Jones, 854 F.2d 412, 415 (11th Cir.1988). 7

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

authorized to convict on a lesser included offense. See Cunningham v. Texas, 726 S.W.2d 151,

153 (Tex.Crim.App.1987). Under such circumstances, the prosecution is not required to seek any

instructions. See Shute V, 877 S.W.2d at 315. Texas has adopted 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. S ee Stephens v. Texas, 806 S.W.2d 812, 817 (Tex.Crim.App.1990).

If the state requested or received such an instruction, however , it may reprosecute on the lesser

included offense. See Granger, 850 S.W.2d at 520. 8

As explained above, the Supreme Court has not clearly established that retrial is barred in this

situation. Accordingly, Texas's rule is not "contrary to ... clearly est ablished Federal law, as

determined by the Supreme Court of the United States...." 28 U.S.C. § 2254(d)(1). The judgment,

accordingly, is AFFIRMED.