                             REVISED

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT
                         _______________

                           No. 96-20194
                         _______________



                         JOHN LEE SHUTE,

                                           Petitioner-Appellant,

                             VERSUS

                         STATE OF TEXAS
                               and
                          TOMMY THOMAS,

                                           Respondents-Appellees.

                    _________________________

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

                          July 3, 1997

                          ON REHEARING


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


JERRY E. SMITH, Circuit Judge:



     Since the panel opinion was issued in this case, see Shute v.

Texas, 113 F.3d 56 (5th Cir. 1997), the Supreme Court has held

§§ 101-106 of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-21
(1996) (codified at 28 U.S.C. §§ 2244, 2253-2254), inapplicable to

non-capital      habeas         corpus    petitions          filed    before     the    act’s

effective    date        of     April    24,       1996.       See    Lindh     v.     Murphy,

No.   96-6298,      65        U.S.L.W.    4557       (U.S.     June    23,     1997).       As

petitioner’s habeas petition pre-dated the act, he is not subject

to it.   Although we reach the same result now as we did under the

AEDPA, Lindh substantially changes our reasoning.                        Accordingly, we

sua sponte withdraw our prior opinion and substitute the following:




      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


                                               2
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 of

attempted murder plus the following:           (1) The victim was a “peace

officer”; (2) the victim was engaged in his official duty at the

time of the attack; and (3) the defendant knew the victim was a

peace officer.    TEX. PEN. CODE ANN. § 19.03(a)(1) (Vernon 1994)

(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.       See Shute v. Texas, No. C14-88-00630-CR,

1989 WL 14123, at *2 (Tex. App.SSHouston [14th Dist.] Feb. 23,

1989, writ ref'd) (not designated for publication).

     The state then indicted Shute for ordinary attempted murder

(the “Second Indictment”).      The state trial court denied Shute's



                                       3
habeas petition that was based on double jeopardy grounds, but the

court of appeals granted relief.           See Shute v. Texas, 812 S.W.2d 61

(Tex. App.SSHouston [14th Dist.] 1991).              The Court of Criminal

Appeals vacated and remanded for reconsideration in light of Ex

parte Granger, 850 S.W.2d 513 (Tex. Crim. App. 1993) (en banc).

See Shute v. Texas, 857 S.W.2d 55 (Tex. Crim. App. 1993).

      On remand, the court of appeals affirmed the denial of habeas

relief.    See Shute v. Texas, 858 S.W.2d 606 (Tex. App.SSHouston

[14th Dist.] 1993) (“Shute IV”).             The Court of Criminal Appeals

accepted review again and affirmed. See Shute v. Texas, 877 S.W.2d

314 (Tex. Crim. App. 1994) (en banc) (“Shute V”).

      Shute then filed a habeas petition in federal court.                   The

district court denied relief, and we granted Shute a certificate of

probable cause to appeal (“CPC”) on August 2, 1996.1

      In the meantime, the indictment against Shute was dismissed



          Section 102 of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1217-18 (1996) (codified
at 28 U.S.C. § 2253), amended 28 U.S.C. § 2253 to require a certificate of
appealability (“COA”) before a final order in a habeas proceeding can be
appealed. In Drinkard v. Johnson, 97 F.3d 751, 755-56 (5th Cir. 1996), cert.
denied, 117 S. Ct. 1114 (1997), we held that this requirement applies to a habeas
petitioner who, like Shute, had a request for a CPC pending on April 24, 1996,
the effective date of the AEDPA.

      Recently, the Supreme Court has decided that “the amendments to chapter
153” apply only “to such cases as were filed after the statute’s enactment.”
Lindh v. Murphy, No. 96-6298, 65 U.S.L.W. 4557, 4558 (U.S. June 23, 1997). As
§ 2253 is a part of chapter 153, Lindh effectively overrules Drinkard on this
point. Because Shute filed his non-capital habeas petition well before April 24,
1996, none of the AEDPA’s requirements apply to him.

      We granted Shute both a CPC and a COA.      The CPC is sufficient to vest
jurisdiction in this court.

                                       4
for technical reasons.            The state secured a new indictment for

attempted murder (the “Third Indictment”).                      Shute pleaded guilty

and was sentenced.        He appealed that conviction in state court on

the ground that collateral estoppel bars a deadly-weapon finding.

That appeal was denied.           See Shute v. Texas, 945 S.W.2d 230 (Tex.

App.SSHouston [1st Dist.] 1997, pet. filed).




                                           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    outcome   of   the    case.

DeFunis   v.    Odegaard,      416    U.S.       312,    317    (1974)   (per      curiam)

(internal quotation marks omitted) (quoting Aetna Life Ins. Co. v.

Haworth, 300 U.S. 227, 240-41 (1937)).

      In federal court, Shute sought a writ of habeas corpus on

double jeopardy grounds. This entailed two requests: (1) an order

of   release    from    custody      and    (2)    an    injunction      against     state

prosecution.     See Showery 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 moot.         “Jurisdiction over a plaintiff’s claims for


                                             5
future relief is appropriate only if a reasonable likelihood exists

that the    plaintiff      will     again       be   subjected    to     the   allegedly

unconstitutional actions.”           Wallace v. Texas Tech Univ., 80 F.3d

1042, 1047 n.3 (5th Cir. 1996) (citing Honig v. Doe, 484 U.S. 305,

317-18 (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, this

cannot 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, there is no prosecution to enjoin.                       His request for

relief from custody, however, remains a live controversy as long as

he is imprisoned.



                                          IV.


                                            6
     Title 28 U.S.C. § 2254(b)-(c) requires a state prisoner to

exhaust available state remedies before seeking federal habeas

relief.   The state has not raised exhaustion, but we have the

discretion to refuse the implicit 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).

     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.”          Deters v. Collins, 985 F.2d 789,

795 (5th Cir. 1993).     When a state prisoner properly presents his

federal claim to the highest state court on direct review, he need

not ask for state collateral relief on the same ground and on the

same evidence.     See Sones v. Hargett, 61 F.3d 410, 415 (5th Cir.

1995); Myers v. Collins, 919 F.2d 1074, 1075-77 (5th Cir. 1990).

     Shute sought a pre-trial state habeas writ, raising his double

jeopardy claim.      See Ex parte Rathmell, 717 S.W.2d 33, 34 (Tex.

Crim. App.   1986)    (en   banc)   (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




                                     7
doctrine.2



                                       V.

                                       A.

      Although a defendant who pleads guilty ordinarily 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 [tried] . . . .”             United States v. Broce,

488 U.S. 563, 575 (1989); accord Taylor, 933 F.2d at 327.                 This is

true even when he pleaded guilty after first raising his double

jeopardy argument.        See Menna v. New York, 423 U.S. 61, 61-62

(1975) (per curiam).

      Unfortunately, the record on appeal does not include any of

the three indictments.3       The Texas courts have held that the Second

Indictment    alleges     a   lesser   included     offense    of   the    First



       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.
See Schultz v. United States, 373 F.2d 524, 524 (5th Cir. 1967) (per curiam) (“We
think it clear that such a transfer cannot divest this court of jurisdiction to
review the denial of appellant’s petition.”); cf. FED. R. APP. P. 23(a) (“Pending
review of a decision in a habeas corpus proceeding commenced before a court,
justice or judge of the United States for the release of a prisoner, a person
having custody of the prisoner shall not transfer custody to another unless such
transfer is directed in accordance with the provision of this rule.”).

      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.

                                       8
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.

     A double jeopardy claim is a question of law.               See United

States v. Cluck, 87 F.3d 138, 140 (5th Cir. 1996) (per curiam).            In

a habeas context, we review the district court’s determinations of

law de novo.      See Dison v. Whitley, 20 F.3d 185, 186 (5th Cir.

1994).

     Generally,      if   a   defendant     obtains   a    reversal    of his

conviction, double jeopardy does not bar a retrial.              See United

States v. Ball, 163 U.S. 662, 671-72 (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 (1978).    This is because a finding of insufficient evidence of

guilt means that the trial court should have entered a judgment of

acquittal, which would have barred retrial.           See id. at 11.4

     For double jeopardy purposes, a lesser included offense is



        This principle applies to state as well as federal prosecutions.   See
Hudson v. Louisiana, 450 U.S. 40, 42 n.3 (1981).

                                     9
considered to be the same crime as the greater offense.       See Harris

v. Oklahoma, 433 U.S. 682, 682-83 (1977) (per curiam).        Therefore,

had the trier of fact simply acquitted Shute of 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 examine the various 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 that element negates

both crimes.      Similarly, if the court had found insufficient

evidence that Shute had intent, it would have entered an acquittal

for both crimes.      Thus, an appellate judgment of insufficient

evidence on the 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 official duty element, it would have 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 convicted Shute of the attempted murder.        Because

an appellate judgment of insufficient evidence on a particular

element is the equivalent of a trial court judgment of insufficient


                                   10
evidence, see Burks, 437 U.S. at 11, the same result should occur

when the appellate court finds insufficient evidence.5

      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.6



                                      2.

      The Eleventh Circuit has addressed this very issue and found

that the Double Jeopardy Clause does not bar retrial.             See Beverly

v. Jones, 854 F.2d 412, 416 (11th Cir. 1988).            The court reasoned

that, because the state appellate court could have imposed a

conviction on the defendant, it had the power to give him another

chance at acquittal:

            Moreover, this is not a case in which the State was


      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).

       Texas follows 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.
See Stephens v. Texas, 806 S.W.2d 812, 817-18 (Tex. Crim. App. 1990) (en banc).
If the state requested or received such an instruction, however, it may re-
prosecute on the lesser included offense.      See Granger, 850 S.W.2d at 520.
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) (en banc).         Under such
circumstances, the prosecution is not required to seek any instructions. See
Shute V, 877 S.W.2d at 315.

                                      11
      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.

Id. at 415.7

      We agree with the Eleventh Circuit’s cogent analysis.                Even

though Shute stipulated to the elements of attempted murder at his

first trial, the state took upon itself the burden of proving those

elements at retrial.      The state had no obligation to grant Shute an

opportunity to obtain an acquittal for a crime of which he already

had been convicted.        Shute cannot complain now of this act of

judicial grace.

      AFFIRMED.




       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.

                                      12
