United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 12, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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.
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
1
Haines v. Kerner, 404 U.S. 519, 520 (1972).
2
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
2
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
3
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.
3
Castille v. Peoples, 489 U.S. 346, 349 (1989).
4