Johnson v. Quarterman
| Decision Date | 12 February 2007 |
| Docket Number | No. 04-11457.,04-11457. |
| Citation | 479 F.3d 358 |
| Parties | Leon JOHNSON, Petitioner-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Leon Johnson, Richmond, TX, pro se.
Sallie Christian-Carnal, S. Michael Bozarth, Asst. Atty. Gen., Austin, TX, for Quarterman.
Appeal from the United States District Court for the Northern District of Texas.
Before HIGGINBOTHAM, SMITH and DeMOSS, Circuit Judges.
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 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...
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