Bledsue v. Johnson

• Decision Date: 31 August 1999
• Docket Number: No. 97-11195,97-11195
• Citation: 188 F.3d 250
• Parties: (5th Cir. 1999) LARRY LEE BLEDSUE, Petitioner-Appellee, v. GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

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188 F.3d 250 (5th Cir. 1999) LARRY LEE BLEDSUE, Petitioner-Appellee,
v.
GARY L. JOHNSON,
Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellant. No. 97-11195 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT August 31, 1999
Rehearing En Banc Denied Oct. 7, 1999.

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Copyrighted Material Omitted

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Appeal from the United States District Court for the Northern District of Texas

Before SMITH, DUHE, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The state appeals the grant of habeas corpus relief to Larry Bledsue, who had been convicted in state court of intentionally and knowingly possessing 28 or more but less than 400 grams of amphetamine. Concluding that the district court properly entertained the claim, we nevertheless disagree with its conclusion that the evidence adduced at trial was constitutionally insufficient to convict. Thus, we reverse the grant of habeas corpus relief and deny Bledsue's petition.

I.

In July 1989, Bledsue was indicted for intentionally and knowingly possessing amphetamine in a quantity less than 400 grams, but of at least 28 grams. The indictment described the offense as "aggravated" but did not state that the weight of the amphetamine necessary to convict could include adulterants or dilutants; neither did it reference TEX. HEALTH & SAFETY CODE 481.116, the statute defining the offense.

The undisputed evidence indicated that, counting adulterants and dilutants, Bledsue possessed more than 28 grams of amphetamine, but that absent such additives he possessed only 10 to 17 grams. On an instruction that it could consider the weight of the adulterants and dilutants when determining the total weight of amphetamin, the jury found Bledsue guilty on the "28 grams or more" count,¹ then sentenced him to life imprisonment under the Texas habitual offender statute after finding his two prior convictions to be "true" for purposes of sentencing.²

Bledsue's appeal to an intermediate Texas court was dismissed as untimely. In response, he filed his first petition for habeas corpus relief with the Texas Court of Criminal Appeals, which granted it, allowing him to proceed on direct appeal. Ultimately, his conviction was affirmed by the intermediate court in an unpublished opinion. He did not petition the Court of Criminal Appeals for discretionary review.

Bledsue did, however, file two additional petitions for habeas relief in Texas courts. In his second petition, his principal argument

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was that the state had failed to prove his possession of at least 28 grams of amphetamine, including adulterants and dilutants, with the intent to increase the amount of amphetamine. The trial court, in a memorandum opinion, found ample evidence to justify the conviction, and the Court of Criminal Appeals denied the petition without written order.

Bledsue then filed a third state habeas petition, in which he specifically argued that (1) the trial court had improperly allowed the jury to include adulterants and dilutants in determining the amount of total amphetamine when the indictment charged only the possession of pure³ amphetamine, and (2) (reiterating the argument from his second petition) the state had failed to prove his possession of at least twenty-eight grams of amphetamine, including adulterants and dilutants, with the intent to increase the amount of amphetamine. The trial court again found ample evidence to support the conviction, but instead of considering the merits on appeal, the Court of Criminal Appeals denied the petition as successive under TEX. CRIM. P. CODE ANN. ART. 11.07 4 (West Supp. 1998).⁴

Bledsue then sought habeas relief in federal court under 28 U.S.C. 2254, advancing the same two points he had raised in his third state habeas petition. The magistrate judge found that Bledsue's first assignment of error was procedurally barred in federal court because it was not raised until his third state habeas petition, which was dismissed by the Court of Criminal Appeals as successive.⁵ But finding Bledsue's second assignment of error procedurally properas it had also been raised in his second state habeas petition, which was denied on the meritsthe magistrate judge treated the second claim as an overall challenge to the sufficiency of the evidence.

Ultimately, the magistrate judge recommended granting the writ, finding the evidence constitutionally insufficient in that the state was bound by its indictment, which charged the possession of at least 28 grams of amphetamine but made no mention of adulterants or dilutants. Because the undisputed evidence indicated that Bledsue possessed, at most, 17 grams of pure amphetamine, the magistrate judge recommended a judgment of acquittal, but allowing the state 120 days to retry on the lesser charge of possessing less than 28 grams. The state objected on only the sufficiency claim, but the district court denied the objection and adopted the recommendation.

The state challenges on three fronts. First, it argues that the court improperly granted relief based on insufficient weight of drugs to convict, given that Bledsue had argued, to the state courts, only insufficient evidence of intent. If, however, the weight claim was contained in his second state habeas petition, the state contends, then Bledsue's state petition was dismissed on a procedural rule rather than on the merits, resulting in a bar to consideration in federal court.

Second and alternatively, the state argues that if the weight claim is in a proper procedural posture for federal consideration, then under a constitutional sufficiency of the evidence test, the evidence adduced at trial was sufficient to prove possession of at least 28 grams. Third, the state urges that even if the evidence was constitutionally deficient, any error is harmless, because Bledsue

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was undeniably guilty of the lesser included offense of possessing "less than 28 grams," and the punishment range for both crimes is the same.

II.

In reviewing a grant of habeas relief, we examine factual findings for clear error and issues of law de novo. Lauti v. Johnson, 102 F.3d 166, 168 (5th Cir. 1996). Mixed questions of law and fact are also reviewed de novo by "independently applying the law to the facts found by the district court, unless those factual determinations are clearly erroneous." Id. at 169. Additionally, Bledsue's federal habeas claim is governed by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), under which federal courts can grant habeas relief only if the state court's adjudication on the merits "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." 28 U.S.C. 2254(d)(1) (1996).⁶

III.

As the state correctly notes, the scope of federal habeas review is limited by the intertwined doctrines of procedural default and exhaustion. Procedural default exists where (1) a state court clearly and expressly bases its dismissal of a claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for the dismissal,⁷ or (2) the petitioner fails to exhaust all available state remedies, and the state court to which he would be required to petition would now find the claims procedurally barred. See Coleman, 501 U.S. at 735 n.1. In either instance, the petitioner is deemed to have forfeited his federal habeas claim. See generally O'Sullivan v. Boerckel, 119 S. Ct. 1728 (1999).

In its original answer to the federal habeas petition, the state admitted "that Bledsue has sufficiently exhausted his state remedies as required by 28 U.S.C. 2254(b) and (c)." Consequently, the state has waived any independent exhaustion argument, as well as the exhaustion argument included within the doctrine of procedural defaultspecifically, ground (2) above.⁸ We therefore consider only whether Bledsue's claim is procedurally

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barred under ground (1), i.e., whether the state court expressed an independent and adequate state law ground for dismissal.

According to the state, the district court should have refused to consider Bledsue's sufficiency claim regarding the weight of the amphetamine, because the only time Bledsue raised any issue regarding weight was in his third state habeas petition, which was expressly dismissed on an independent and adequate procedural ground (successive writs). The state asserts that in his direct appeal to the intermediate state court of appeals and in his second habeas petition to the Court of Criminal Appeals, Bledsue focused only on the intent element and raised no challenge to the sufficiency of the evidence regarding weight. Consequently, contends the state, the district court granted relief on an issue advanced only in Bledsue's third habeas petition, which was expressly dismissed on the independent and adequate state law ground of abuse of the writ.

The district court, however, concluded that the overall issue of sufficiency of the evidencenot just sufficiency as to the issue of intentwas presented in Bledsue's direct appeal and in his second state habeas petition. We agree. Although we recognize that the plain language of Bledsue's direct state appeal and second state habeas petition did not explicitly pinpoint the issue of weight, his claim of insufficient proof of intent implicitly presented the issue of weight. Admittedly, we so conclude generously, because Bledsue is a pro se petitioner, and in this circuit pro se habeas petitions are construed liberally and are not held to the same stringent and rigorous standards as are pleadings filed by lawyers.⁹ To that end, we accord Bledsue's state and federal habeas petitions a broad interpretation, notwithstanding the later appointment of counsel.¹⁰

Accordingly, finding guidance from Brown v. Collins, 937 F.2d 175 (5th Cir. 1991), we conclude that Bledsue amply raised an...