Stewart v. Davis, No. 4:2017cv00264 - Document 38 (S.D. Tex. 2017)
Court Description: MEMORANDUM OPINION AND ORDER denying 36 MOTION for Appointment of Counsel, granting 35 MOTION Expansion of Record, granting 26 MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Stewart v. Davis Doc. 38 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION COREY STEWART, TDCJ #1717765, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § § § § § December 20, 2017 David J. Bradley, Clerk CIVIL ACTION NO. H-17-0264 MEMORANDUM OPINION AND ORDER Texas inmate Corey Stewart has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody Entry No. 1), seeking relief under 28 U.S.C. ("Petition") § (Docket 2254 from a state court capital murder conviction that resulted in a sentence of life without parole. Davis's Motion Pending before for ("Respondent's MSJ") Summary the court Judgment is Respondent Lorie with 26). (Docket Entry No. Brief in Support Stewart has filed Petitioner's Traverse to Respondent's Return and Answer Pursuant to 28 U.S.C. § 2254(e) (1), and Rule 5(e) ("Petitioner's Traverse") (Docket Entry No. 37), along with a Motion for Expansion of Record (Docket Entry No. 35) and a Motion for Appointment of Counsel if the court orders an evidentiary hearing (Docket Entry No. 36) . After considering all of the pleadings, the state court records, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below. Dockets.Justia.com I. Background In Brazos County cause number 10-02913-CRF-361, Stewart was charged with capital murder in connection with the death of Johannes Kinny, 1 who was shot and killed early in the morning of April 2, 2010, during the course of a robbery at an Exxon convenience store in College Station, Texas, where Kinny worked as an overnight cashier. 2 was shot in the chest Security camera footage showed that Kinny during accomplice, Joshua Evans. 3 a confrontation with Stewart, who was armed with a knife, 4 struck Kinny several times during that altercation. 5 Evans then went drawer. 6 behind the Stewart's counter and took the Stewart and store's cash Although Kinny sustained at least two stab wounds to his back, he died as a result of the gunshot wound inflicted by Evans. 7 Law enforcement set up a mobile command center at the Exxon station to coordinate reports from the investigating officers and 1 Indictment, Docket Entry No. 27-1, p. 8. For purposes of identification, all page numbers for docket entries in the record refer to the pagination inserted by the court's electronic filing system, CM/ECF. 2 Court Reporter's Record, vol. 5, Docket Entry No. 27-19, p. 9. 3 Court Reporter's Record, No. 27-20, pp. 101-06. 4 (part one) , Docket Entry vol. 6 (part two) , Docket Entry Id. at 40. 6 6 Id. at 27. 5 vol. Id. at 27, 41. 7 Court Reporter's Record, No. 28-1, pp. 14-16, 21, 31. -2- to disseminate information that was being collected by detectives. 8 As the investigation commenced on April 2, 2010, police received information about another violent robbery that had recently at another Exxon station in nearby Bryan, they believed could be related. 9 occurred Texas, which In addition, two local residents (Jessica Greeno and Devoris Harris) came forward and identified one of the perpetrators shown in the security footage as one of three men who had robbed them at gunpoint the previous week on March 27, 2010. 10 Greeno told Detective Michael Lohse that thirty minutes before arriving at their interview she had seen the man who was armed with the gun during that robbery (later identified as Stewart) and that he was driving a white and blue Lincoln bearing the Texas license plate number HCK 814. 11 Police recovered the stolen cash drawer from a dumpster in front of an apartment building that was within walking distance from the College Station Exxon where Kinny was killed. 12 Police noted that a white and blue Lincoln had been seen parked next to the dumpster where the stolen cash drawer was found. 13 8 Court Reporter's Record, vol. pp. 47, 51-52, 66-68. 9 Id. at 43. 10Id. at 103-15. llid. at 105-06. 12Id. at 3 71 38-39. 13 Id. at 37, 106. -3- 2, The Lincoln Docket Entry No. 27-15, had license plate number HCK 841, which nearly matched the number provided by Greeno. 14 Police who were canvassing the area had encountered Stewart in front of the apartment complex where Stewart was living with his girlfriend. 15 Stewart was questioned by Detective Danny Junek, who noted that Stewart had the same build as one of the offense. 16 suspects depicted in the security footage of the Junek became even more suspicious after it was later reported that Stewart was seen leaving the apartment complex in the Lincoln along with another male who met the description of the other suspect. 17 Based on this information the detective who was in charge of the investigation at the command center (Sergeant Woodward) put out a BOLO (be on the look out) for the Lincoln, with instructions to find a way to stop the vehicle and detain the occupants for questioning in connection with the robbery and murder that had occurred earlier that day. 18 Officer Ian Mader, who had been with the College Station Police Department for less than a year, watched the surveillance footage of the robbery at the start of his shift on the afternoon of April 2, 2010, and heard the BOLO while he was out on patrol. 19 14 Id. at 37, 106. 15Id. at 39-40, 42. 16 Id. at 44. 17Id. at 45-46, 57-58. 1sid. at 9, 111-12. 19Id. at 8-9, 16. -4- Officer Mader located the Lincoln and reported it to a dispatch officer who told Mader to try and make a stop for probable cause based on a traffic violation, person stop. " 20 rather than making a "suspicious While coordinating with other officers, stopped the vehicle and detained all observed that the driver (Stewart) distance before making a turn. 21 Mader three occupants after he failed to signal the required Although Stewart had signaled his intent to turn, Mader did not believe that the signal had been made more than 100 feet from the turn, under Texas law. 22 which is a traffic violation Stewart was detained for the traffic violation, for failing to have a driver's license, and for being in possession of marijuana. 23 Officers identified Joshua Evans and his cousin, Jeremy Evans, as the passengers in the Lincoln that Stewart was driving when it was stopped photographic by Officer Mader. 24 Greeno lineups and identified Stewart, and Harris viewed Joshua Evans, and Jeremy Evans as the men who robbed them on March 27, 2010. 25 Detective Travis Lacox arrived at the scene of the traffic stop and questioned Stewart as he sat hand-cuffed in the back of a 2oid. at 11-12. 21Id. at 13. 22Id. 23Id. at 14-15. 24Id. at 114. 2sid. at 115. -5- patrol car. 26 After Lacox read Stewart his Miranda warnings, he showed Stewart surveillance photos from the robbery that occurred at the Exxon station in Bryan, and Stewart admitted taking part in that offense. 27 Stewart was given Miranda warnings again several days after his arrest and gave a recorded statement admitting his role in the robbery of the Exxon in College Station, Kinny was killed. 28 Items taken from during which Johannes Greeno and Harris were recovered from a search of the Lincoln, which was impounded after Stewart's arrest. 29 A knife and the gun used to kill Kinny were recovered during a search of Stewart's apartment. 30 Stewart's defense counsel filed motions to suppress his statements to police and the evidence seized as the result of his arrest, arguing that the traffic stop was invalid. 31 Testimony at the suppression hearing disclosed that Stewart had not, in fact, committed a traffic violation because he did signal his intent to 26Id. at 70-71. 27Id. at 71-72. 2sid. at 76-81. 29Id. at 126, 132. 3 °Court Reporter's Record, No. 28-2, p. 66. vol. 31 7 (part one), Docket Entry Motion to Suppress Statements, Docket Entry No. 27-2, pp. 6-7; Motion to Suppress Evidence Obtained by Illegal Detention of the Citizen Accused, Docket Entry No. 27-2, pp. 19-25. -6- turn within the required distance. 32 After hearing testimony about how police had identified Stewart as a suspect before the traffic stop was made and the BOLO that had issued for the Lincoln, the trial court denied the motions to suppress. 33 On June 17, 2011, a jury in the 36lst District Court of Brazos County found Stewart guilty as charged of capital murder. 34 Because the State did not seek the death penalty, the trial court automatically imposed a sentence of life imprisonment without the possibility of parole pursuant to Texas Penal Code § 12.3l(a) (2) . 35 On direct appeal Stewart argued that the trial court abused its discretion by (1) denying his motion to suppress evidence on the grounds that police conducted an improper traffic stop; (2) denying his motion to suppress statements because there was no express waiver of his rights; and (3) admitting exhibits presented during the trial authentication. 36 32 of his accomplice (Evans) without proper Stewart also argued that there was insufficient Court Reporter's Record, pp. 15, 122-23. vol. 2, Docket Entry No. 27-15, 33 0rders, Docket Entry No. 27-2, pp. 55-56. 34 Judgment of Conviction by Jury, Docket Entry No. 27-2, p. 38. 35 Court Reporter's Record, Vol. 8, Docket Entry No. 28-4, p. 51. Joshua Evans was also convicted of capital murder and sentenced to life imprisonment without parole in a separate trial. See Evans v. State, 440 S.W.3d 107 (Tex. App. - Waco 2013, pet. ref'd). 36 Brief of Appellant, Docket Entry No. 27-4, p. 4. -7- evidence to show that he intended to cause the victim's death. 37 An intermediate court of appeals rejected all of Stewart's arguments and affirmed the conviction in an unpublished opinion, which summarized the presented at trial. WL 3969824 pretrial proceedings and the evidence See Stewart v. State, No. 10-11-00291-CR, 2013 (Tex. App. - Waco, Aug. 1, 2013). The Texas Court of Criminal Appeals summarily refused his petition for discretionary review. See Stewart v. State, PD-1183-13 (Tex. Crim. App. Jan. 15, 2014). Stewart then challenged his conviction by seeking state habeas corpus review under Article 11.07 of the Texas Code of Criminal Procedure. 38 The state habeas corpus court, which also presided over the trial and pretrial proceedings, recommended that relief be denied after making detailed findings of fact and conclusions of law. 39 The Texas Court of Criminal Appeals agreed and denied relief without a written order based on the findings and conclusions made by the trial court. 40 37Id. 38 Application for a Writ of Habeas Corpus Under Code of Criminal Procedure, Article 11.07 ("State Habeas Application") , Docket Entry No. 29-2, pp. 6-44. 39 0rder to Transmit Habeas Corpus Record with Findings of Fact and Conclusions of Law ("Findings and Conclusions"), Docket Entry No. 29-5, pp. 39-62. 40 Action Taken on Writ No. 84,419-02 (Tex. Crim. App. Sept. 21, 2016), Docket Entry No. 29-7, p. 1. -8- Stewart now seeks a federal writ of habeas corpus under 28 u.s.c. § According 2254 to the to challenge his capital murder Petition and Memorandum Brief conviction. in Support Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. ("Memorandum Brief") , Docket Entry No. 2, Stewart § raises of 2254 the following claims for relief: 1. During the suppression hearing, he was denied the right to confront and cross-examine witnesses who identified him (Greeno and Harris) 2. His conviction was obtained with evidence seized during an unlawful search, therefore, he is actually innocent. 3. The trial court erred by denying his motions to suppress without a valid reason. 4. The evidence was insufficient conviction for capital murder. 5. The prosecutor engaged in misconduct by presenting evidence during the suppression hearing of an unadjudicated extraneous offense, namely, the robbery of Greeno and Harrisi and the trial court abused its discretion by admitting this evidence without affording him the opportunity to confront and cross-examine the witnesses against him. 6. He was denied effective assistance of counsel during his pretrial and trial proceedings. 7. He was denied effective assistance of counsel on appeal. 8. The state courts erred by holding that his unlawful stop and detention was reasonable. 41 41 to support his Petition, Docket Entry No. li Memorandum Brief, Docket Entry No. 2. Because Stewart is prose, his pleadings are subject to a less stringent standard than those drafted by lawyers. See Haines (continued ... ) -9- The respondent moves for summary judgment arguing that Stewart is not entitled to relief under the governing federal habeas corpus standard of review because two of his claims are procedurally barred (Claims 1 and 5) and that all of his claims are without merit. II. Standard of Review To the extent that Stewart's claims were adjudicated on the merits in state court, his Petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 codified at 28 U.S.C. corpus court may § not 2254(d). grant adjudication involved unreasonable Federal an law, as United States[.]" Under the AEDPA a federal habeas relief "resulted in a unless application 28 U.S.C. the decision that was determined § ("AEDPA"), by the of, court's contrary to, clearly Supreme 2254(d) (1). state or established Court of the Likewise, a court may not grant relief on a claim that presents a question of fact unless the petitioner shows that the state court's denial of relief "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 28 u.s.c. 2254 (d) (2). 41 ( • • • continued) v. Kerner, 92 S. Ct. 594, 596 (1972) (per curiam); see also Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) ("A document filed pro se is 'to be liberally construed [.] '") (quoting Estelle v. Gamble, 97 s. Ct. 285, 292 (1976)). The court has considered all pleadings submitted by Stewart under this standard, including those documents identified in Stewart's Motion for Expansion of Record. See Docket Entry No. 35, p. 1 (referencing exhibits attached to the Petition and Memorandum Brief) -10- For purposes of review under § 2254 (d) (1), "'[a] state court's decision is deemed contrary to clearly established federal law if it reaches a decision of legal conclusion in direct conflict with a prior the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.'" Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015) (citations omitted); see also Williams v. Taylor, 120 S. Ct. 1495, 1519-20 (2002) . To constitute an "unreasonable application of" clearly established federal law, a state court's holding "must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. (quoting White v. Donald, Woodall, satisfy this high bar, 134 S. 135 S. Ct. Ct. 1697, 1372, 17 o2 1376 (2015) ( 2 o14) ) . "To a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)). The AEDPA evaluating "imposes state-court a 'highly rulings, ' deferential [which] standard 'demands state-court decisions be given the benefit of the doubt.'" v. Lett, 130 S. Ct. 1855, 1862 (2010) (citations omitted). for that Renico This standard is intentionally "difficult to meet" because it was meant to bar relitigation of claims already rejected in state proceedings and to preserve federal habeas review as "a 'guard against extreme -11- malfunctions in the state criminal justice systems,' substitute for ordinary error correction through appeal." 131 S. Ct. at 786 2796, n.5 (1979) (quoting Jackson v. Virginia, (Stevens, J., 99 S. not a Richter, Ct. 2781, concurring)); see also White, 134 s. Ct. at 1702. A state court's factual determinations are also entitled to great deference on federal habeas corpus review. Findings of fact are "presumed to be correct" unless the petitioner rebuts those findings § with 2254 (e) (1). "clear and convincing evidence." 28 u.s.c. This presumption of correctness extends not only to express factual findings, but also to the state court's implicit findings. 2006) See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir. (citing Summers v. Dretke, 431 F. 3d 861, 876 (5th Cir. 2005); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)). A federal habeas corpus court "may not characterize these state-court factual determinations as unreasonable 'merely because [it] reached a different conclusion in the first instance.'" would have Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 130 S. Ct. 841, 849 (2010)). 2254 (d) (2) requires that [a "Instead, § federal court] accord the state trial court substantial deference." Id. III. A. The Confrontation Clause Claims (Claims 1 and 5) In two related claims the Discussion trial court (Claims 1 and 5), Stewart argues that improperly admitted -12- hearsay testimony from detectives during the pretrial suppression identification made by Greeno and Harris, hearing about the who told police that Stewart robbed them at gunpoint one week before the capital murder occurred at the College Station Exxon. 42 Stewart argues that evidence of the identification was hearsay that was offered by the prosecutor and admitted by the trial court improperly in violation of the rules of evidence and the Confrontation Clause, which guarantees a defendant's right to confront and cross-examine his accusers. 43 1. These Claims Are Barred from Federal Review The respondent notes that Claims 1 and 5 were rejected for procedural reasons on state habeas corpus review because Stewart failed to present them on direct appeal. 44 The respondent argues that Claims 1 and 5 are therefore barred from federal review by the doctrine of procedural default. 45 The record confirms that the state habeas corpus court rejected the grounds asserted in Claims 1 and 5 for procedural reasons because these issues should have been raised on direct appeal, but were not. 46 42 In doing so the state habeas corpus court Petition, Docket Entry No. 1, pp. 6-7, 12-13. 43Id. 44 Respondent's MSJ, Docket Entry No. 26, pp. 10-12. 46 Findings and Conclusions, Docket Entry No. 29-5, pp. 40-42, 44-45 ~~ 8-11, 19-20. -13- relied on Ex parte Nelson, 2004), which held that 137 S.W.3d 666, "habeas (Tex. cannot corpus 667 be Crim. App. used as a substitute for appeal, and that it may not be used to bring claims that could have Richardson, 201 been brought S.W.3d 712, on appeal." 713-14 See (Tex. also Crim. Ex App. parte 2006) (Emphasizing that "'the Great Writ [of habeas corpus] should not be used' to litigate appeal[.]'") Crim. App. matters 'which should have been raised on (quoting Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. 2004)). The Fifth Circuit has held that this state procedural rule is adequate to bar federal habeas corpus review. See Scheanette v. Quarterman, 482 F.3d 815, 827 (5th Cir. 2007) (recognizing that the Texas rule requiring a petitioner to present any claims based on the trial record on direct appeal, raising them in a state habeas petition, before is an "'adequate state ground capable of barring federal habeas review'") (quoting Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)). Where a petitioner has committed a procedural default, federal habeas corpus review is available only if he can demonstrate: (1) "cause for the default and actual prejudice as a result of the alleged violation of federal law," or (2) that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991). To satisfy the exception of reserved for fundamental miscarriages justice a petitioner must provide the court with evidence that would support a "colorable claim of factual innocence." -14- Kuhlmann v. Wilson, 106 S. Ct. 2616, 2627 innocence here, (1986). Stewart makes no showing of factual and he does not otherwise attempt to explain or demonstrate cause for his default. Accordingly, Claims 1 and 5 are procedurally barred from federal review. 2. Alternatively, These Claims Are Without Merit Even if not procedurally barred Stewart cannot prevail on a claim that hearsay testimony was presented and admitted improperly during a pretrial suppression hearing. court, The state habeas corpus which also considered these claims in the alternative, 47 concluded that they were without merit because, subject to limited exceptions not applicable here, the rules of evidence do not apply during pretrial suppression hearings. 48 See Granados v. State, 85 S.W.3d 217, 227 (Tex. Crim. App. 2002) (holding that the rules of evidence, except those applying to privileges, do not apply to suppression hearings); see also Ford v. State, 305 S.W.3d 530, 53435 (Tex. Crim. App. 2009). The state habeas corpus court also 47 Stewart argues that Claims 1 and 5 are not procedurally defaulted because the state habeas corpus court also rejected them on the merits. Petitioner's Traverse, Docket Entry No. 37, pp. 3-4. Stewart is mistaken. "The rule in this circuit is that, when a state court bases its decision upon the alternative grounds of procedural default and a rejection of the merits, a federal court must, in the absence of good 'cause' and 'prejudice,' deny habeas relief because of the procedural default" rather than reevaluating the claim on the merits. Hughes v. Dretke, 412 F.3d 582, 592 (5th Cir. 2005) (quoting Cook v. Lynaugh, 821 F.2d 1072, 1077 (5th Cir. 1987)); see also Sigala v. Quarterman, 338 F. App'x 388, 392-93 (5th Cir. 2009) (reciting the same rule). 48 ~~ Findings and Conclusions, Docket Entry No. 29-5, pp. 42, 45 12, 20. -15- concluded that the Sixth Amendment Confrontation Clause also does not apply during a suppression hearing because the right to confront and cross-examine witnesses is a trial right that is not implicated during pretrial proceedings. 49 165 S.W.3d 68, 74-75 (Tex. App. - See Vanmeter v. State, Dallas 2005, pet. ref'd) (concluding that "the constitutional right of confrontation is a trial right, not a pretrial right," and therefore does not apply at pretrial suppression hearings) . Although the state habeas corpus court based its decision on Texas law, federal courts have also held that the rules of evidence and the Confrontation suppression hearings. Clause See, S. Ct. 2406, 2414 (1980) do e.g., not apply during United States v. pretrial Raddatz, 100 ("At a suppression hearing, the court may rely on hearsay and other evidence, even though that evidence would not be admissible at trial."); Ebert v. Gaetz, (7th Cir. 2010) 610 F.3d 404, 414 (holding that the Confrontation Clause "was not implicated" during a pretrial suppression hearing) ; United States v. de la Fuente, 548 F.2d 528, 533 (5th Cir. 1977) trial " [a] court, in resolving preliminary (explaining that fact questions concerning the admissibility of evidence, is not bound by the rules of evidence") (citing Fed. R. Evid. 104(a) and llOl(d) (1)). Stewart does not identify any Supreme Court precedent holding that the 49 Confrontation Clause or Id. at 42 (citation omitted). -16- evidentiary rules regarding hearsay apply during a pretrial suppression hearing and the court's own research has not located any. state habeas without contrary corpus merit, to court Stewart clearly Thus, to the extent that the concluded that does not show established Claims that Supreme this 1 and 5 were decision Court was precedent. Therefore, he is not entitled to federal habeas corpus relief on Claim 1 or Claim 5. B. The Fourth Amendment Claims (Claims 2, 3, and 8) In three overlapping claims for relief Stewart argues that he is entitled to relief because his conviction was obtained with evidence seized following his invalid arrest in violation of the Fourth Amendment. invalid because Stewart contends in Claim 2 that his arrest was it was the conducted by Officer Mader. 50 Claim 3, result of a "bogus" traffic stop Stewart repeats this contention in arguing that the trial court abused its discretion by denying his motion to suppress "without a valid reason" because Officer Mader's erroneous belief that he violated traffic laws was insufficient to justify the stop that led to his arrest. 51 Stewart repeats this contention again in Claim 8, arguing that the state court of appeals erred by affirming his conviction after holding that the traffic stop was supported by reasonable suspicion and 50 Petition, Docket Entry No. 1, pp. 6, 8. 51 Petition, Docket Entry No. 1, pp. 9, 10; Memorandum Brief, Docket Entry No. 2, pp. 12-19. -17- that his arrest did not violate the Fourth Amendment. 52 Arguing that all of the evidence against him should have been suppressed, Stewart reasons that there should not have been a trial and that he is actually violation. 53 innocent as a result The respondent argues of that the Fourth Amendment these claims are "not cognizable" on federal habeas corpus review or are without merit. 54 1. Stewart's Actual Innocence Claim is Not Actionable A petitioner's claim of actual innocence, standing alone, is not an actionable review. See ground Herrera v. for Collins, ("Claims of actual innocence . ground for federal relief habeas 113 on S. federal Ct. habeas 853, corpus 860 (1993) . have never been held to state a relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). Instead, a claim of actual innocence is "a gateway through which a habeas petitioner must pass to have his otherwise [procedurally] merits." actual barred Id. at 862. innocence constitutional claim considered on the A petitioner must support his allegation of with "new reliable evidence" that was not presented at trial and must show that "it is more likely than not that no reasonable juror would have convicted him in the light of 52 Petition, Docket Entry No. 1, p. 17; Memorandum Brief, Docket Entry No. 2, p. 30. 53 Petition, Docket Entry No. 1, p. 6; Memorandum Brief, Docket Entry No. 2, pp. 9-11. 54 Respondent's MSJ, Docket Entry No. 26, pp. 12-19, 48. -18- the new evidence. " (1995). Schlup v. Delo, 115 S. Ct. 851, 865, 867 Stewart makes no effort to satisfy that showing. Even assuming actionable on emphasized that that federal a a freestanding habeas showing review, of actual "extraordinarily high" threshold. innocence the Supreme innocence claim were Court would have has an Herrera, 113 S. Ct. at 869; see also House v. Bell, 126 S. Ct. 2064, 2086 (2006) (observing that such a "hypothetical freestanding innocence claim" would require "more convincing proof of innocence" than the gateway standard for excusing a procedural default under Schlup). Because Stewart does not present any evidence in support of his claim, he does not demonstrate that he has a credible claim of actual innocence. 2. Stewart's Fourth Amendment Claims are Barred from Review Because Stewart had an opportunity to litigate his Fourth Amendment claims in state court, federal habeas corpus review of those claims is barred by the Supreme Court's decision in Stone v. Powell, 96 S. Ct. 3037 (1976). The Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id. at 3046. The Fifth Circuit has since interpreted an "opportunity for full and fair litigation" Cockrell, to mean just that: 301 F.3d 316, 320 "an opportunity." (5th Cir. -19- 2002) Janecka v. (citing Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978)). "If a state provides the processes whereby a defendant can obtain full and fair litigation of a [F]ourth [A]mendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes." Id. Texas affords a process for criminal defendants to file a pretrial motion to suppress under Article 28.01 of the Texas Code of Criminal Procedure. Stewart availed himself of that process by filing a motion to suppress, which the trial court denied following a hearing. 55 Stewart's Fourth Amendment claims were also reviewed at length by the intermediate court of appeals, Fourth Amendment violation, which found no and by the Texas Court of Criminal Appeals, which denied Stewart's petition for discretionary review of that determination. 2013 WL 3969824, ref'd). See Stewart v. State, No. 10-11-00291-CR, at *1-4 (Tex. App.- Waco, Aug. 1, 2013, pet. Because Stewart had ample opportunity to challenge his arrest and the ensuing search in state court, his Fourth Amendment claims (Claims 2 and 3) are precluded from federal habeas review by the holding in Stone v. Powell. 3. Alternatively, Merit the Fourth Amendment Claims are Without The respondent also argues that Stewart fails to show that the trial court denied his motion to suppress in error for reasons 55 Court Reporter's Record, vol. 2, Docket Entry No. pp. 1-148; Orders, Docket Entry No. 27-2, pp. 55-56. -20- 27-15, outlined by the court of appeals. 56 Stewart challenged the trial court's decision, arguing that the traffic stop which led to his arrest was invalid. 57 He complained in particular that there was no reasonable suspicion to stop him because he did not commit a traffic offense, and the officer who detained him (Officer Mader) did not otherwise have a basis to suspect his involvement in criminal activity that would have justified the stop. 58 "The stopping of a vehicle and detention of its occupants constitutes a 'seizure' under the Fourth Amendment." v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) traffic stop to satisfy the Fourth Amendment, 'reasonable suspicion' - that is, United States (en bane). For a "officers need only 'a particularized and objective basis for suspecting the particular person stopped' of breaking the law." Heien v. North Carolina, 135 S. Ct. 530, 536 (2014) (quoting Navarette v. California, 134 S. Ct. 1683, 1687-88 (2014)). A brief stop is permissible for purposes of investigating possible criminal behavior in order to determine the suspected individual's identity or to briefly information. maintain status See Adams v. Williams, (citing Terry v. Ohio, Arizona v. the Johnson, quo while obtaining 92 S. Ct. 1921, 1923 more (1972) 88 S. Ct. 1868, 1879-80 (1968)); see also 129 S. Ct. 781, 784 (2009) (observing that 56 Respondent's MSJ, Docket Entry No. 26, pp. 13-19. 57 Brief of Appellant, Docket Entry No. 27-4, pp. 23-40. 58 Id. at 36-371 39-40 • -21- Terry authorizes investigatory detention of brief duration in a traffic-stop setting where the police officer has a reasonable suspicion that one of the occupants is committing or has committed a criminal offense) . The court of appeals provided a lengthy summary of the facts adduced during the suppression WL 3969824, at *1-4. hearing. See Stewart, 2013 The court of appeals noted that Officer Mader had viewed the security camera footage of the offense at the start of his shift and heard the BOLO identifying Stewart as a suspect wanted for questioning in connection with the robbery and murder before making the decision to stop the Lincoln based on the mistaken belief that Stewart had committed a traffic violation. Id. at *3. Without addressing whether Officer Mader's erroneous belief that Stewart committed a traffic violation was reasonable, the court of appeals rejected Stewart's claim, concluding that the "cumulative information" available to the officers who were investigating the murder "constituted reasonable suspicion that Stewart had been involved in criminal activity." Id. at *4. The court of appeals concluded, therefore, that the trial court did not err by denying Stewart's motion to suppress the evidence. In reaching its appeals observed that personally aware of ultimate "[t]he every conclusion, detaining fact that the state officer objectively need Id. court of not be supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be -22- considered in determining whether reasonable suspicion exists." Id. at *2 (quoting Derichsweiler v. (Tex. Crim. App. 2011)). State, 348 S.W.3d 906, 914 This is consistent with Fourth Amendment jurisprudence from the United States Supreme Court, which has held that an officer is permitted to make an investigatory stop based upon a police bulletin that has been issued on the basis of articulable facts supporting a reasonable suspicion that the person has committed an offense. See United States v. Hensley, 105 S. Ct. 675, 682 (1985); see also United States v. Ibarra-Sanchez, 199 F.3d 753, 759-60 (5th Cir. 1999) (upholding a traffic stop and search by officers acting on a police dispatcher's bulletin under the "collective knowledge" doctrine) (citations omitted); United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999) (noting that "an alert or BOLO report may provide the reasonable suspicion necessary to justify an investigatory stop"). The facts outlined by the state court of appeals are presumed correct for purposes of federal habeas corpus review, § 2254(e) (1), and are supported by the record. 28 U.S.C. As noted above, the BOLO was issued after a witness (Jessica Greeno) identified Stewart from surveillance footage of the offense as the man who robbed her at gunpoint and provided the license plate number of the car he was driving, which was off by one number, but otherwise matched a Lincoln that was seen parked next to a dumpster where the stolen Exxon store cash drawer was found. 59 Court Reporter's Record, pp. 103-15. 59 vol. -23- Based on this information and 2, Docket Entry No. 27-15, the suspicions formed by Detective Junek, the BOLO was issued for Stewart and passengers the vehicle, advising were wanted for patrol questioning robbery and murder at the Exxon. 60 officers that the in connection with the Stewart does not demonstrate that the information provided was unreliable or insufficient to establish a reasonable suspicion for the vehicle stop. Hensley, 105 S. Ct. at 682; Gonzalez, 190 F.3d at 672-73. See Stewart does not otherwise show that the state court's decision to reject his Fourth Amendment unreasonable precedent. claims application of, was contrary to, or involved an clearly established Supreme Court Accordingly, Stewart fails to show that he is entitled to federal habeas corpus relief on any of his allegations arising under the Fourth Amendment (Claims 2, 3, and 8). C. Sufficiency of the Evidence (Claim 4} Stewart contends that the evidence was insufficient to support his conviction for capital murder because the State failed to prove that he "specifically" and "intentionally" death as charged in the indictment. 61 caused the victim's On habeas corpus review of a state court conviction, a challenge to the legal sufficiency of the evidence is governed by Jackson v. Virginia, ( 197 9) , standard. which See reflects the federal 99 S. constitutional Ct. 2781 due process In re Winship, 90S. Ct. 1068, 1073 (1970) ("(T]he 60 Id. at 9, 111-12. 61 Petition, Docket Entry No. 1, pp. 9, 11. -24- Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged."). requires only that a viewing the prosecution, essential reviewing court determine evidence in any rational elements of the light trier of the crime most fact beyond This standard "whether, favorable could have a after to found reasonable the the doubt." Jackson, 99 S. Ct. at 2789 (emphasis in original). The Supreme Court has emphasized "that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference." 2060, 2062 questions (2012) only Coleman v. Johnson, 132 S. Ct. (per curiam). whether the A federal habeas corpus court state court's assessment already-strict Jackson standard was unreasonable. § 2254(d) (1). dose of of the See 28 U.S.C. Together, Jackson and the AEDPA require a "double deference that can rarely be Boyer v. surmounted." Bellegue, 659 F.3d 957, 964 (9th Cir. 2011). In conducting its review under this doubly deferential standard, the court looks to the last reasoned state judgment that considered and rejected the petitioner's federal claim. v. Nunnemaker, 111 S. Ct. 2590, 2594 (1991). See Ylst That judgment was issued by the intermediate court of appeals, which set forth the elements of the offense and concluded that there was sufficient evidence to support Stewart's capital murder conviction as charged under the Texas law of parties: -25- Capital Murder A person commits capital murder if he intentionally causes the death of an individual while in the course of committing or attempting to commit robbery. Tex. Pen. Code Ann.§ 19.03(a)(2) (West 2011); Johnson v. State, 853 S.W.2d 527, 535 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 852, 114 S. Ct. 154, 126 L.Ed.2d 115 (1993); Frank v. State, 183 S.W.3d 63, 72 (Tex. App. -Fort Worth 2005, pet. ref'd). The law of parties applies to the offense of capital murder. Johnson, 853 S.W.2d at 534; Frank, 183 S.W.3d at 72. Under the law of parties, " [a] person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both." Tex. Pen. Code Ann. § 7.01(a); Frank, 183 S.W.3d at 72. A person is "criminally responsible" for an offense committed by the conduct of another, if acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Tex. Pen. Code Ann. § 7.02(a) (2); Frank, 183 S.W.3d at 72. Evidence is sufficient to convict under the law of parties when the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App.) (op. on reh'g), cert. denied, 519 U.S. 1030, 117 S. Ct. 587, 136 L.Ed.2d 516 (1996); Frank, 183 S. W. 3d at 72-73. In determining whether a defendant participated in an offense as a party, the factfinder may examine the events occurring before, during, and after the commission of the offense and may rely on actions of the defendant that show an understanding and common design to commit the offense. Ransom, 920 S.W.2d at 302; Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101, 106 S. Ct. 1942, 90 L.Ed.2d 352 (1986); Frank, 183 S. W. 3d at 73. Further, section 7.02(b) of the penal code provides that [i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in -26- furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Tex. Pen. Code Ann. § 7.02(b). The jury was instructed that it could find Stewart guilty of capital murder in any of three different ways: (1) as a principal; (2) as a party under section 7.02(a) (2) of the Texas Penal Code; and (3) as a co-conspirator under section 7. 02 (b) of the Texas Penal Code. The jury returned a general verdict; therefore, if the evidence is sufficient to support a guilty finding under any of the allegations submitted, we must uphold the jury's guilty verdict. Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005) . Stewart's complaint is limited to whether the evidence was sufficient to show that his accomplice had the specific intent to kill the victim. Therefore, our analysis and discussion of the facts will be limited to that issue. Intent is most often proven through the circumstantial evidence surrounding the crime. See Sholars v. State, 312 S.W.3d 694, 703 (Tex. App. - Houston [1st Dist.] 2009, pet. ref'd). Intent to kill may be inferred from the use of a deadly weapon unless it would not be reasonable to infer that death or serious bodily injury could result from the use of the weapon. See Ross v. State, 861 S.W.2d 870, 873 (Tex. Crim. App. 1992). If a deadly weapon is used in a deadly manner, the inference is almost conclusive that the defendant intended to kill. See Godsey v. State, 719 S.W.2d 578, 581 (Tex. Crim. App. 1986). Relevant Facts Stewart's accomplice, Joshua Evans, entered an Exxon in College Station to rob it armed with a loaded .22 caliber revolver. Stewart entered approximately ten seconds after Evans. Kinny, the victim, was a clerk at the store. The security camera footage showed that Evans pointed the revolver at Kinny when he saw Kinny. Kinny advanced toward Evans holding his hands up. Evans pulled the revolver to his side, with Kinny still coming toward him. When Kinny was close to Evans, Evans raised the revolver again and pointed it toward Kinny. Evans and Kinny scuffled and at some point, Kinny was shot by -27- Evans. Kinny continued scuffling with Evans until he collapsed. Stewart claimed that Kinny collapsed on top of Evans, and in an effort to get Kinny off of Evans, he may have "poked" Kinny with the knife he was carrying. Kinny suffered two stab wounds to his back, one of which was 2 inches deep, which the medical examiner believed occurred after the shooting. Kinny died from the gunshot wound. Stewart presented evidence that the revolver that was shown to be the murder weapon was old and in disrepair and would have been very difficult to fire. Stewart argues that because Kinny continued advancing after Evans lowered the weapon to his side the first time and because there was some evidence presented at trial that the revolver might have malfunctioned due to its poor condition, the evidence was insufficient. However, our review of the record demonstrates that the jury could have determined beyond a reasonable doubt that Evans intended to kill Kinny. Evans brought a revolver loaded with hollow point bullets to the Exxon, and immediately pointed it at Kinny upon making contact with him. Although Evans did lower his arm, he raised it again as he was stepping aside to dodge Kinny's advances, which could reasonably have been viewed as an attempt to disarm Evans. There was evidence that Kinny could have been shot when Evans raised his arm the second time based on the trajectory of the bullet in Kinny's body. Stewart admitted that he knew that Evans carried a firearm with him everywhere he went in case he needed it. The jury was entitled to believe or disbelieve the testimony regarding whether or not the revolver discharged accidentally or intentionally. Viewing all of the evidence in a light most favorable to the verdict, we find that the evidence was sufficient for the jury to have found that Evans intended to kill Kinny. We overrule [this issue] . Stewart v. State, No. 10-11-000291-CR, 2013 WL 3969824, *5-7 (Tex. App. - Waco Aug. 1, 2013, pet. ref'd). sion, the court of appeals expressly In reaching this conclufollowed the standard announced in Jackson for evaluating challenges to the sufficiency of the evidence. See Stewart, 2013 WL 3969824, at *4-5. -28- Stewart does not take issue with any particular finding or conclusion by the state court entitled to "great weight." (5th Cir. 1985) of appeals, 62 whose opinion is Parker v. Procunier, 763 F.2d 665, 666 (citing Jackson, 99 S. Ct. at 2790, n.15); see also Callins v. Collins, 998 F.2d 269, 276 state appellate court has conducted a (5th Cir. 1993) ("Where a thoughtful review of the evidence . . . its determination is entitled to great deference."). Viewing all of the evidence under the doubly deferential standard that applies on federal habeas review, Stewart has not shown that the state court's decision was objectively unreasonable or that he is entitled to relief under Jackson. The court's own review of the record shows than support the that there verdict. was more Therefore, sufficient Stewart's evidence challenge to to the sufficiency of the evidence (Claim 4) is without merit. D. Ineffective Assistance of Counsel at Trial (Claim 6) In Claim 6 Stewart contends that he is entitled to relief because he was denied effective assistance of counsel during his pretrial and trial proceedings. In several sub-claims Stewart contends that his defense counsel was deficient for failing to 62 In making his challenge to the sufficiency of the evidence, Stewart attempts to argue that the State created a fatal variance by charging him as if he were the "primary shooter," but presenting a theory based on conspiracy or law of the parties at trial. Petition, Docket Entry No. 1, p. 11; Memorandum Brief, Docket Entry No. 2, p. 19. This argument is without merit for the reasons discussed further below in connection with a similar claim that Stewart makes regarding his defense counsel's failure to object to the State's theory of the case. -29- (a) attack impermissibly suggestive identifications conducted by detectives; (b) argue that testimony from Detective Johse was inconsistent with testimony from Sergeant Woodward and Detective Junek regarding the BOLO; (c) argue that a probable cause statement prepared by detectives in support of their request for search warrants was inconsistent with the State's theory of the case at trial; (d) attack Detective Johse's testimony about the photo array that he showed to Jessica Greeno and Devoris Harris; (e) attack the sufficiency of affidavits prepared by Detective Johse, which improperly used information obtained from the invalid traffic stop of his vehicle; (f) argue that officers failed to corroborate or establish Greeno and Harris's reliability concerning their pretrial identification; (g) the traffic stop; he issued a traffic stop adequately cross-examine Officer Mader about (h) question Officer Mader about whether or not citation for the traffic stop; of his investigatory stop; vehicle and ( j) immediately argue that he (i) argue that the escalated was beyond an interviewed by Detective Lacox after his vehicle was stopped based on reasonable suspicion, rather than probable cause. 63 As the state habeas corpus court correctly noted, claims for ineffective assistance of counsel are governed by the standard found in Strickland v. Washington, 104 S. Ct. 2052 (1984) . 64 To 63 Petition, Docket Entry No. 1, pp. 14-15; Memorandum Brief, Docket Entry No. 2, pp. 21-30. 64 51-58 Findings and Conclusions, Docket Entry No. 29-5, pp. 46-48, ~~ 23-29, 36-51 (referencing the Strickland standard). (continued ... ) -30- prevail under the Strickland standard a defendant must demonstrate (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 2064. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. "To satisfy the deficient performance prong, 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" (5th Cir. denied, 2014) Hoffman v. Cain, 752 F.3d 430, 440 (quoting Strickland, 135 S. Ct. 1160 (2015) . 104 S. This is a Ct. at 2064), cert. "highly deferential" inquiry; "[t]here is 'a strong presumption that counsel's conduct falls within assistance.'" the Id. wide range of reasonable professional (quoting Strickland, 104 S. Ct. at 2065). To satisfy the prejudice prong "[t] he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S. Ct. at 2068. must "affirmatively prove prejudice." 64 A habeas petitioner Id. at 2067. A petitioner continued) Although Stewart argues that his counsel's deficiencies are tantamount to a denial of counsel for which prejudice is presumed, see Memorandum Brief, Docket Entry No. 2, pp. 24, 26-30 (citing United States v. Cronic, 104 s. Ct. 2039, 2047 (1984)), the trial transcript refutes Stewart's claim that his attorney failed to subject the State's case to meaningful adversarial testing; Cronic, therefore, is not applicable. ( ••• -31- cannot satisfy the second prong of Strickland with mere speculation and conjecture. Cir. 1992). See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Conclusory allegations are insufficient to demonstrate either deficient performance or actual prejudice. See Day v. Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992) (stating that an ineffectiveness claim based on speculation or conclusional rhetoric will not warrant relief) . Because the petitioner's ineffective-assistance claims were rejected by the state court, the issue is not whether this court "'believes the state court's determination' under the Strickland standard 'was incorrect but whether that determination unreasonable - a Mirzayance, 129 s. Ct. 1411, 1420 (2009) (citation omitted). addition, substantially higher threshold. '" was Knowles v. In "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id. When applied in tandem with the highly deferential standard found in 28 U.S.C. § 2254 (d), review of deferential" on habeas ineffective-assistance corpus review. Id. claims at is 1413; "doubly see also Richter, 131 S. Ct. at 788 (emphasizing that the standards created by Strickland and "'doubly' § 2254 (d) are both "highly deferential," so" when applied in tandem) omitted); Beatty v. Stephens, (citations and quotations 759 F.3d 455, (same). -32- and 463 (5th Cir. 2014) 1. Failure to Challenge the Pretrial Identification Stewart presents three related sub-claims that take issue with counsel's failure to object to the reliability of the pretrial identification by Jessica Greeno and Devoris Harris. In Claim 6(a) Stewart contends that his trial counsel was deficient for failing to argue that the procedures employed by police to obtain his identification were impermissibly suggestive. 65 Stewart argues in particular that counsel should have, but did not, argue that it was unreasonable for surveillance footage array. 66 Detective of In Claim 6(d) the Johse to show offense before Greeno and Harris conducting a photo Stewart contends that his counsel should have challenged Detective Johse's testimony about the timing of the photo-array as probable cause inconsistent with statements statement, which would that he made have credibility during the suppression hearing. 67 undercut in a Johse's In Claim 6(f) Stewart faults his counsel for failing to argue that Detective Johse's "independent investigation" failed to corroborate the details of Greeno and Harris's identification, which Stewart characterizes as "stale" and unreliable. 68 65 Memorandum Brief, Docket Entry No. 2, p. 22. 66Id. 67 68 Id. at 24-25. Id. at 26-27. -33- The state habeas corpus court rejected these claims and found no deficient performance after considering the law concerning impermissibly suggestive pretrial photographic identifications: . The test is whether, considering the totality of the circumstances, "the photograph identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Reliability is the linchpin in determining the admissibility of identification testimony. The following five non-exclusive factors should be "weighed against the corrupting effect of any suggestive identification procedure in assessing reliability under the totality of the circumstances": (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and ( 5) the length of time between the crime and the confrontation. 69 See also Lavernia v. Lynaugh, 845 F.2d 493, 500 (5th Cir. 1988) (outlining the federal standard, which is that "' [r]eliability is the linchpin in determining the admissibility of identification testimony,'" and listing the same five factors identified by the state habeas court) (quoting Manson v. Brathwaite, 97 S. Ct. 2243, 2253 (1977)) . After setting out the applicable legal standard, the state habeas corpus court concluded that the identifications made by Greeno and suggestive Harris were identification "reliable and procedure," not based the on result the of any following findings of fact: 69 Findings and Conclusions, Docket Entry No. 29-5, p. 47 -34- ~ 26. 28. The Court finds that the offense occurred on April 2, 2010. (CR at 1). That same day, Det. Johse interviewed two victims for the March 27, 2010 robbery: Jessica Greeno and Devoris Harris. (2 RR 103) . They stated that three African American males robbed them just seven days before; one of them had a long barreled revolver. (2 RR 104). More importantly, Greeno stated that, thirty minutes before being interviewed by Johse, she saw the suspect who robbed her with the revolver; she saw him at Frankie's Exxon, which is located at Texas Avenue and Harvey Mitchell. (2 RR 105). She identified the suspect as being 5'7" to 5'8" and between 220 and 230 pounds. (2 RR 106). The suspect was driving a white and blue Lincoln with a license plate of HCK 814. 29. The Court finds that Greeno's and Harris' [s] identifications were reliable and not the result of any suggestive identification procedure. Both Greeno and Harris stated that they were able to view [Stewart] at the time of the crime and then viewed him again just seven days later and 30 minutes before being interviewed by Johse. They were also able to provide a description of [Stewart's] vehicle and an almost exact recitation of the license plate number. There is nothing in the record to demonstrate that the pretrial identification was impermissibly suggestive because of the manner in which the procedure was conducted. Had trial counsel objected, this Court would have properly overruled said objection. Consequently, [Stewart] has failed to prove that any motion would have been granted in order to satisfy Strickland. See Roberson v. State, 852 S.W.2d at 51012.70 The state rejecting noting habeas corpus Stewart's that court claims reinforced about citizen informants these Detective who findings Johse' s when testimony, identify themselves to law enforcement, as Greeno and Harris did in this case, are inherently reliable and that the identification was corroborated in this instance with evidence recovered from Stewart's vehicle after it was stopped by Officer Mader. 71 70 Id. at 47-48 ~~ 28-29. Id. at 55 ~ 46 (citing State v. Duarte, 389 S.W.3d 349, 357 (Tex. Crim. App. 2012)). 71 -35- The findings made by the state habeas corpus court, which presided over the suppression hearing and trial, are supported by the record. Because Stewart does not present clear and convincing evidence to refute those findings, purposes § of federal 2254 (e) (1); habeas they are presumed correct for corpus review. See see also Livingston v. Johnson, 28 U.S.C. 107 F.3d 297, 310 (5th Cir. 1997) (findings of fact made in the course of determining the admissibility of identification testimony are afforded the presumption of correctness) . Stewart does not demonstrate that Greeno and Harris were unreliable or that any inconsistent statement made by Detective Johse rendered the pretrial identification inadmissible. Stewart does not otherwise allege facts showing that his identification was obtained by impermissibly suggestive means, and he does not propose any objection that his counsel could have made that would have been sustained. Based on this record Stewart has not established that his defense counsel was ineffective with respect to his pretrial identification, and he has not shown that the conclusion was objectively unreasonable or wrong. state court's Therefore, he is not entitled to relief on Claims 6(a), 6(d), and 6(f). 2. Failure to Challenge Inconsistent Testimony In Claim 6(b) Stewart contends that his defense counsel was deficient Woodward for and failing Detective to argue Junek at that testimony trial was from Sergeant inconsistent with testimony by Detective Johse at the pretrial suppression hearing -36- regarding Stewart's identification as a suspect for purposes of issuing the BOL0. 72 In support of this claim Stewart notes that Detective Johse testified at the pretrial hearing that the BOLO was issued for the Lincoln after Greeno and Harris identified him from security footage as the man who robbed them at gunpoint on March 27, 2010, but at trial Sergeant Woodward testified that the BOLO was issued after Detective Junek received information during his investigation from "unidentified sources" who saw Stewart leave the apartment complex in the company of a man (Evans) who matched the description of the second suspect. 73 The state habeas corpus court summarily rejected this claim after finding that Stewart failed to show that defense counsel's performance fell below professional norms cross-examination of the detectives. 74 with respect to her The state habeas corpus court concluded, moreover, that Stewart failed to show that he was harmed or that "the result of his trial would have been different had counsel argued the alleged inconsistencies." 75 Consequently, the state habeas corpus court concluded that Stewart failed to establish deficient performance or actual prejudice. 76 72 Memorandum Brief, Docket Entry No. 2, p. 23. 73 Id. 74 Findings and Conclusions, Docket Entry No. 29-5, p. 53 75Id. 76Id. -37- ~ 40. In reviewing ineffective-assistance claims a federal habeas corpus court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, that, the defendant must overcome the presumption under the circumstances, the challenged action considered sound trial strategy.'" (citation omitted) . 'might be Strickland, 104 S. Ct. at 2065 This court has reviewed the testimony given by Detective Junek and Detective Johse at the pretrial hearing and the trial, as well as trial testimony given by the lead detective, Sergeant Woodward, who did not testify at the suppression hearing. 77 From this review it is evident that the alleged inconsistency concerns the manner in which the State chose to explain to the jury how Stewart first became a suspect. testimony at trial about how To do so, the State presented Detective Junek first became suspicious of Stewart after questioning him outside his apartment, which was located near the Exxon crime scene and the dumpster where the stolen cash drawer was recovered, rather than presenting testimony about the pretrial identification made by Greeno and Harris. 78 Defense counsel likely did not highlight what Stewart 77 Court Reporter's Record, vol. 2, Docket Entry No. 27-15, pp. 33-64 (Det. Junek pretrial); pp. 96-135 Det. Johse pretrial); Court Reporter's Record, vol. 6 (part one), Docket Entry No. 27-20, pp. 226-39 (Sergeant Woodward- trial); Court Reporter's Record, vol. 6 (part two), Docket Entry No. 28-1, pp. 1-11 (Sergeant Woodward, continued) . 78 Court Reporter's Record, vol. 6 (part two) , No. 28-1, pp. 41-68 (Detective Junek - trial). -38- Docket Entry characterizes as an inconsistency because doing so would have opened the door to testimony about how Greeno and Harris identified Stewart as the man who robbed them at gunpoint during another offense that was committed the week before Kinny was murdered at the College Station Exxon. Based on this record Stewart's allegations are not sufficient to overcome the presumption that defense counsel's performance was consistent with reasonable trial strategy or to demonstrate that she was deficient inconsistency. for has Nor failing Stewart to shown challenge that he the alleged was actually prejudiced as a result of any failure to object on his counsel's As a result, part. he has failed to show that the state habeas corpus court's conclusion was objectively unreasonable or that he is entitled to relief on Claim 6(b). 3. Failure to Challenge the State's Inconsistent Theory In Claim 6 (c) Stewart argues that his defense counsel was deficient for failing to argue that the State's theory of his involvement in the case was inconsistent with the probable cause statement prepared by Detective Johse and the indictment. 79 In support of this claim Stewart notes that both the probable cause statement drafted by Detective Johse and the indictment charged him with intentionally killing Johannes Kinny as if Stewart were the "primary shooter," but that the evidence presented at trial and the 79 Memorandum Brief, Docket Entry No. 2, pp. 23-24. -39- theory pursued by the State was that Evans killed Kinny and that Stewart was a co-conspirator or party to the offense. 80 The state habeas corpus court summarily rejected this claim in the same manner that it rejected Claim 6 (b) . 81 demonstrated that the Stewart has not state court's decision was unreasonable. Stewart argues in another part of his pleadings that by alleging one theory in the indictment and pursuing another at trial there fatal variance between the indictment and the evidence. 82 was a This argument, which is premised on the State's failure to expressly charge him as a co-conspirator under the law of parties, lacks merit because in Texas "a person can be convicted as a party even if the indictment does not explicitly charge him as a party." Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006) Marable v. State, 85 S.W.3d 287, 288 also Garcia v. State, 486 San Antonio 2015, pet. ref'd) S.W.3d (citing (Tex. Crim. App. 2002)); see 602, 607-08 (Tex. App. (observing that the law of parties is properly included in the jury charge even when the indictment only alleged that the defendant acted as the principal actor) omitted) . The same is true in federal court. (citations See, United States v. Thomas, 690 F.3d 358, 370 (5th Cir. 2012) e.g., ("Aiding and abetting is an alternate charge in every federal indictment."); 80 Id. at 24. 81 Findings and Conclusions, Docket Entry No. 29-5, p. 53 82 ~ 40. Petition, Docket Entry No. 1, p. 11; Memorandum Brief, Docket Entry No. 2, pp. 19, 23-24. -40- United States v. Neal, 951 F.2d 630, 633 (5th Cir. 1992) (explaining that "aiding and abetting" as a party is not a separate offense that must be pled in an indictment) . Stewart does not allege facts showing that his defense counsel had a valid objection to make or that the result of his trial would have been different but for his counsel's failure to challenge any inconsistency between presented at trial. that a the charging instrument and the theory Because Stewart has not otherwise demonstrated constitutional violation occurred as the result of a variance, or from the manner in which the State pursued its theory of the case, he has not demonstrated that the state habeas corpus court's decision to reject this claim was objectively unreasonable or that he is entitled to relief on Claim 6(c). 4. In Failure to Attack Detective Johse's Affidavits Claim 6 (e) Stewart contends that Detective Johse "prematurely" prepared probable cause affidavits for his arrest and for search warrants. 83 Stewart argues that his defense counsel was deficient for failing to challenge the probable cause affidavits on the grounds that they contained information obtained from the invalid stop of his vehicle. 84 The state habeas corpus court rejected this claim after observing that Stewart's motion to suppress evidence based on the 83 Memorandum Brief, Docket Entry No. 2, pp. 25-26. 84 Id. at 25. -41- traffic stop was properly overruled and that "[a]ny information obtained from the stop of the vehicle was properly used in any probable cause affidavit. " 85 The state habeas corpus court therefore concluded that Stewart failed to demonstrate deficient performance or actual prejudice because he did not show that there was a reasonable probability that the result of the proceeding would have been different if his counsel had objected. 86 Stewart does not allege facts showing that the probable cause affidavits were legally insufficient or that his counsel had a valid objection to make. His conclusory allegations are insuffi- cient to establish an ineffective-assistance claim. F.3d at 540-41. state court's unreasonable See Day, 566 Stewart does not otherwise demonstrate that the decision under the to reject his claim highly deferential was objectively Strickland standard. Accordingly, Stewart is not entitled to relief on the allegations asserted in Claim 6(e). 5. Failure to Adequately Cross-Examine Officer Mader Stewart raises two related claims that take issue with his defense counsel's effort to question Officer traffic stop that resulted in his arrest. Mader about the In Claim 6(g) Stewart contends that defense counsel was generally deficient for failing to adequately cross-examine Officer Mader about the traffic stop in 85 Findings and Conclusions, Docket Entry No. 29-5, p. 54 86 Id. at 55-56 ~~ 44-45. -42- ~ 41. an effort to show that it was invalid. 87 In Claim 6(h) Stewart faults his counsel in particular for failing to question Officer Mader about whether or not he issued a citation for the traffic violation. 88 The state habeas corpus court rejected these claims, concluding that Stewart failed to demonstrate deficient performance or prove actual prejudice. 89 The record shows that defense counsel skillfully questioned Officer Mader about suppression hearing. 90 the traffic stop during the pretrial Defense counsel also questioned Officer Mader during trial, specifically with regard to whether there was a reasonable suspicion or probable cause for the traffic stop. 91 During both proceedings Mader admitted that he was mistaken about whether a traffic violation had, in fact, occurred. 92 Under these circumstances, Stewart does not show that the issuance of a traffic citation or lack thereof is material. He does not otherwise propose any particular questions that his counsel failed to ask 87 Memorandum Brief, Docket Entry No. 2, pp. 27-28. 88 Id. at 28. 89 ~~ Findings and Conclusions, Docket Entry No. 29-5, pp. 56-58 45-51. 9 vol. 2, 91 vol. 6 °Court Reporter's Record, pp. 16-28. Court Reporter's Record, No. 28-1, pp. 81-85. 92 Court Reporter' s Record, vol. 2, p. 15; Court Reporter's Record, vol. 6 No. 28-1, p. 82. -43- Docket Entry No. (part two) , 27-15, Docket Entry Docket Entry No. 27-15, (part two), Docket Entry that would have made a difference in the result of his proceeding. Because his bare allegations are insufficient to demonstrate deficient performance or actual prejudice under Strickland, Stewart fails to demonstrate that the state court's decision was unreasonable or that he is entitled to relief on Claims 6(g) and 6 (h) . 6. Failure to Adequately Challenge the Traffic Stop Stewart's remaining ineffective-assistance allegations against his trial counsel concern the failure to adequately challenge the traffic stop on Fourth suppression hearing. Amendment grounds at the pretrial In Claim 6(i) Stewart contends that counsel was deficient for failing to argue that his arrest was invalid because the traffic stop of beyond an investigatory stop. 93 his vehicle immediately escalated In Claim 6 ( j) Stewart contends that his counsel should have argued that he was interviewed by Detective Lacox after his vehicle was stopped based on reasonable suspicion, rather than probable cause. 94 The state habeas corpus court rejected these claims after determining that Stewart failed to establish that his counsel's performance was concluded further deficient. 95 that The Stewart state failed habeas to present corpus court any argument 93 Memorandum Brief, Docket Entry No. 2, pp. 28-29. 94 Id. at 29. 95 Findings and Conclusions, Docket Entry No. 29-5, p. 57 -44- ~ 50. showing that/ but for his attorney/ s deficient motion to suppress would have been granted. An attorney 1 s failure to performance/ a 96 adequately litigate a Fourth Amendment claim may constitute deficient performance under the Strickland standard if the evidence would have been suppressed as the result of a properly urged objection or motion to suppress. See Ward v. Dretke/ 420 F.3d 479 1 488 (5th Cir. 2005) The petitioner bears the burden of proving that the evidence at issue would have been suppressed as a result of an adequate motion or objection by his counsel and that 1 absent the excludable evidence/ the verdict at his trial would have been different. v. Morrison 1 106 S. Ct. 2574 1 2583 (1986). that burden because 1 for reasons See Kimmelman Stewart does not meet referenced previously connection with his Fourth Amendment claims (Claims 2 1 3 1 in and 8) 1 he has not shown that his conviction was obtained as the result of an unlawful search and seizure or that a Fourth Amendment violation occurred. court 1 S Stewart does not otherwise demonstrate that the state decision to reject his claim was objectively unreasonable. Therefore/ Stewart is not entitled to relief on Claims 6(i) and 6 (j ) . E. Ineffective Assistance of Counsel on Appeal (Claim 7) In Claim 7 Stewart contends that he was denied effective assistance of counsel on appeal because his attorney failed to 96 Id. at 58 ~ 51. -45- thoroughly argue that the traffic stop which led to his arrest was unreasonable. 97 In making this claim Stewart lists several allega- tions that are similar to those lodged against his trial counsel in Claims 6 (i) appellate counsel and 6 (j). attorney failed Specifically, failed to to address (1) Stewart alleges argue issues that concerning the unlawful that his his trial stop of his vehiclei (2) argue that his arrest was unlawful because the traffic stop immediately escalated beyond an investigatory stopi (3) argue that he was seized and then transported to the police station based on a reasonable suspicion, rather than probable causei and (4) address the fact that affidavits prepared by Detective Johse failed to establish Greeno and Harris's reliability concerning the information that they provided prior to the stop of his vehicle. 98 To establish that appellate counsel's performance was deficient under the Strickland standard the defendant must show that his attorney was objectively unreasonable in failing to find arguable issues to appeal - that is, that counsel unreasonably failed to discover non-frivolous issues and raise them. Robbins, 120 S. Ct. 746, 764 (2000). such a showing, demonstrating a then he must "reasonable appeal." 97 If the defendant succeeds in establish probability" counsel's deficient performance, Smith v. actual that, prejudice but for by his "he would have prevailed on his Id. Peti tion, Docket Entry No. 1, p. 16. 9sid. -46- Stewart's appellate attorney provided a detailed affidavit in response to his allegations of ineffective-assistance, explaining that each of Stewart's proposed arguments was without merit under the circumstances of his case. 99 The state habeas corpus court found that counsel's affidavit was "credible" and that Stewart was not entitled to relief because he failed to establish either prong of Strickland with respect to any of his claims. 100 In the Memorandum Brief submitted in support of his Petition Stewart references two cases in support of his claim that counsel should have argued that the traffic stop immediately escalated beyond an investigative detention: United States v. Roch, 5 F.3d 894 (5th Cir. 1993), and State v. Crisp, 74 S.W.3d 474 - Waco 2002, no pet.) . 101 however, were (Tex. App. The defendants in both of those cases, immediately placed on the ground and handcuffed without any questioning by police respecting their identities or other inquiries of an investigative nature. Crisp, 74 S.W.3d at 482. a traffic violation See Roch, F.3d at 897; Stewart, who was placed under arrest for and for failure to produce a driver's license, 102 does not articulate facts showing that he was treated in 99 Affidavit of Mary Hennessy, Docket Entry No. 29-4, pp. 81-90. 10 ~~ °Findings 52(d)-55. 101 102 and Conclusions, Docket Entry No. 29-5, p. 59 Memorandum Brief, Docket Entry No. 2, p. 3 0. Court Reporter's Record, pp. 12-14. vol. -47- 2, Docket Entry No. 27-15, a manner similar to the defendants in Roch or Crisp. Therefore, those cases are distinguishable. Stewart also references Florida v. J.L., 120 S. Ct. 1375, 1379-80 (2000), in which the Supreme Court held that an anonymous tip, standing suspicion alone, for an was insufficient to establish reasonable detention. 103 investigative That case is distinguishable from Stewart's case because the BOLO that resulted in the traffic stop of his vehicle was based on information provided by two citizens (Greeno and Harris) who were interviewed in person by a detective. 104 The information provided by Greeno and Harris was corroborated by other facts during the investigation, such as the that had been uncovered fact that the Lincoln described by Greeno was parked next to the dumpster where the stolen cash drawer was recovered and Detective Junek's previous encounter with Stewart. 105 showing that Stewart does not otherwise allege facts the BOLO was based on insufficient or unreliable information, and he does not demonstrate that the holding in J.L. applies to his benefit. For reasons discussed previously in connection with Claims 2, 3, and 8, Stewart has not shown that the trial court erred in denying his motion to suppress or that his conviction was tainted 103 Memorandum Brief, Docket Entry No. 2, p. 3 0. 104 Court Reporter's Record, pp. 103-112. 105 Id. at 37-48, vol. 111. -48- 2, Docket Entry No. 27-15, by a Fourth Amendment violation. Stewart does not otherwise articulate facts showing that appellate counsel was deficient for failing to raise any of the arguments that he proposes in his pleadings. To the extent that he takes issue with the way in which his attorney litigated his Fourth Amendment claim on appeal, he does not demonstrate that she had any other meritorious ground for relief to assert on direct appeal or that the result of his appeal would have been any different particular argument. if his attorney had raised any Stewart's allegations are insufficient to demonstrate either deficient performance or actual prejudice and do not articulate a valid claim for relief. 41. or See Day, 566 F.3d at 540- Because Stewart has failed to establish deficient performance actual prejudice, he does not show that the state court unreasonably rejected this claim, and he is not entitled to relief on this issue. Because Stewart has failed to establish any valid claim for relief in this case, Respondent's MSJ will be granted and the Petition will be denied. IV. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253 (c) (2), which requires a petitioner to -49- demonstrate court's "that assessment 'reasonable of the jurists would constitutional find claims the district debatable wrong."' Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). or (quoting Under the controlling standard this requires a petitioner to show "'that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further.'" 1039 (2003). Miller-El v. Cockrell, 123 S. Ct. 1029, Where denial of relief is based on procedural grounds the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether procedural ruling." the district court was correct in its Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). See After careful review of the pleadings and the applicable law, the court concludes that reasonable jurists would not find the assessment of the constitutional claims debatable or wrong. Because the petitioner does not demonstrate that his claims could be resolved in a different manner, a certificate of appealability will not issue in this case. -50- V. Conclusion and Order The court ORDERS as follows: 1. Petitioner Corey Stewart's Motion for Expansion of Record to include certain exhibits (Docket Entry No. 35) is GRANTED. 2. Respondent Lorie Davis's Motion for Summary Judgment (Docket Entry No. 26) is GRANTED. 3. Stewart's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DENIED, and this action will be dismissed with prejudice. 4. Stewart's Motion for Appointment of Counsel (Docket Entry No. 36) is DENIED. 5. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 20th day of December, 2017. SIM LAKE UNITED STATES DISTRICT JUDGE -51-
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