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Stewart v. Davis

United States District Court, S.D. Texas, Houston Division

December 20, 2017

COREY STEWART, TDCJ #1717765, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE UNITED STATES DISTRICT JUDGE.

         Texas inmate Corey Stewart has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1), seeking relief under 28 U.S.C. § 2254 from a state court capital murder conviction that resulted in a sentence of life without parole. Pending before the court is Respondent Lorie Davis's Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 26). 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.

         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] Security camera footage showed that Kinny was shot in the chest during a confrontation with Stewart's accomplice, Joshua Evans.[3] Stewart, who was armed with a knife, [4]struck Kinny several times during that altercation.[5] Stewart and Evans then went behind the counter and took the store's cash drawer.[6] 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 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 occurred recently at another Exxon station in nearby Bryan, Texas, which they believed could be related.[9] 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] The Lincoln 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 suspects depicted in the security footage of the offense.[16] 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] 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, rather than making a "suspicious person stop."[20] While coordinating with other officers, Mader stopped the vehicle and detained all three occupants after he observed that the driver (Stewart) failed to signal the required distance before making a turn.[21] 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, which is a traffic violation under Texas law.[22] 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 by Officer Mader.[24] Greeno and Harris viewed photographic lineups and identified Stewart, 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 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, during which Johannes Kinny was killed.[28] Items taken from 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 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 361st 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 § 12.31(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 of his accomplice (Evans) without proper authentication.[36] Stewart also argued that there was insufficient 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 pretrial proceedings and the evidence presented at trial. See Stewart v. State, No. 10-11-00291-CR, 2013 WL 3969824 (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]

         Stewart now seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge his capital murder conviction. According to the Petition and Memorandum Brief in Support of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Memorandum Brief"), Docket Entry No. 2, Stewart raises 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 to support his 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 Harris; 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]

         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 ("AEDPA"), codified at 28 U.S.C. § 2254(d). Under the AEDPA a federal habeas corpus court may not grant relief unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1). 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).

         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 legal conclusion in direct conflict with a prior decision of 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. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)). "To satisfy this high bar, 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 "imposes a 'highly deferential standard for evaluating state-court rulings, ' . . . [which] 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (citations omitted). 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 malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 99 S.Ct. 2781, 2796, n.5 (1979) (Stevens, J., 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 "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness extends not only to express factual findings, but also to the state court's implicit findings. See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir. 2006) (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] would have reached a different conclusion in the first instance.'" Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 130 S.Ct. 841, 849 (2010)). "Instead, § 2254(d)(2) requires that [a federal court] accord the state trial court substantial deference." Id.

         III. Discussion

         A. The Confrontation Clause Claims (Claims 1 and 5)

         In two related claims (Claims 1 and 5), Stewart argues that the trial court improperly admitted hearsay testimony from detectives during the pretrial suppression hearing about the identification made by Greeno and Harris, 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] In doing so the state habeas corpus court relied on Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2 004), which held that "habeas corpus cannot be used as a substitute for appeal, and that it may not be used to bring claims that could have been brought on appeal." See also Ex parte Richardson, 201 S.W.3d 712, 713-14 (Tex. Crim. App. 2006) (Emphasizing that "'the Great Writ [of habeas corpus] should not be used' to litigate matters 'which should have been raised on appeal[.]'") (quoting Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 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, before raising them in a state habeas petition, 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 reserved for fundamental miscarriages of justice a petitioner must provide the court with evidence that would support a "colorable claim of factual innocence." Kuhlmann v. Wilson, 106 S.Ct. 2616, 2627 (1986) . Stewart makes no showing of factual innocence here, 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. The state habeas corpus court, 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, 534-35 (Tex. Crim. App. 2009) . The state habeas corpus court also 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] See Vanmeter v. State. 165 S.W.3d 68, 74-75 (Tex. App. - 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 Clause do not apply during pretrial suppression hearings. See, e.g., United States v. Raddatz, 100 S.Ct. 2406, 2414 (1980) ("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, 610 F.3d 404, 414 (7th Cir. 2010) (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) (explaining that "[a] trial court, in resolving preliminary fact questions concerning the admissibility of evidence, is not bound by the rules of evidence") (citing Fed.R.Evid. 104(a) and 1101(d)(1)).

         Stewart does not identify any Supreme Court precedent holding that the Confrontation Clause or evidentiary rules regarding hearsay apply during a pretrial suppression hearing and the court's own research has not located any. Thus, to the extent that the state habeas corpus court concluded that Claims 1 and 5 were without merit, Stewart does not show that this decision was contrary to clearly established Supreme Court 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. Stewart contends in Claim 2 that his arrest was invalid because it was the result of a "bogus" traffic stop conducted by Officer Mader.[50] Stewart repeats this contention in Claim 3, 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 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 innocent as a result of the Fourth Amendment violation.[53] The respondent argues that 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 ground for relief on federal habeas corpus review. See Herrera v. Collins, 113 S.Ct. 853, 860 (1993) ("Claims of actual innocence . . . have never been held to state a ground for federal habeas 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] barred constitutional claim considered on the merits." Id. at 862. A petitioner must support his allegation of actual innocence 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 the new evidence." Schlup v. Delo, 115 S.Ct. 851, 865, 867 (1995). Stewart makes no effort to satisfy that showing.

         Even assuming that a freestanding innocence claim were actionable on federal habeas review, the Supreme Court has emphasized that a showing of actual innocence would have an "extraordinarily high" threshold. 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" to mean just that: "an opportunity." Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002) (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, which found no Fourth Amendment violation, and by the Texas Court of Criminal Appeals, which denied Stewart's petition for discretionary review of that determination. See Stewart v. State, No. 10-11-00291-CR, 2013 WL 3969824, at *l-4 (Tex. App. - Waco, Aug. 1, 2013, pet. ref'd). 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, the Fourth Amendment Claims are Without Merit

         The respondent also argues that Stewart fails to show that the trial court denied his motion to suppress in error for reasons 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." United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc) . For a traffic stop to satisfy the Fourth Amendment, "officers need only 'reasonable suspicion' - that is, '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 maintain the status quo while obtaining more information. See Adams v. Williams, 92 S.Ct. 1921, 1923 (1972) (citing Terry v. Ohio, 88 S.Ct. 1868, 1879-80 (1968)); see also Arizona v. Johnson, 129 S.Ct. 781, 784 (2009) (observing that 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 hearing. See Stewart, 2013 WL 3969824, at *1-4. 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. Id.

         In reaching its ultimate conclusion, the state court of appeals observed that "[t]he detaining officer need not be personally aware of every fact that objectively supports a reasonable suspicion to detain; rather, the cumulative information known to the cooperating officers at the time of the stop is to be considered in determining whether reasonable suspicion exists." Id. at *2 (quoting Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2 011)). 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, 28 U.S.C. § 2254(e) (1), and are supported by the record. 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] Based on this information and the suspicions formed by Detective Junek, the BOLO was issued for Stewart and the vehicle, advising patrol officers that the passengers were wanted for questioning in connection with the robbery and murder at the Exxon.[60] Stewart does not demonstrate that the information provided was unreliable or insufficient to establish a reasonable suspicion for the vehicle stop. See Hensley, 105 S.Ct. at 682; Gonzalez, 190 F.3d at 672-73. Stewart does not otherwise show that the state court's decision to reject his Fourth Amendment claims was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent. 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" caused the victim's death as charged in the indictment.[61] On habeas corpus review of a state court conviction, a challenge to the legal sufficiency of the evidence is governed by Jackson v. Virginia, 99 S.Ct. 2781 (1979), which reflects the federal constitutional due process standard. See In re Winship, 90 S.Ct. 1068, 1073 (1970) ("[T]he 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."). This standard requires only that a reviewing court determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable 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." Coleman v. Johnson, 132 S.Ct. 2060, 2062 (2012) (per curiam) . A federal habeas corpus court questions only whether the state court's assessment of the already-strict Jackson standard was unreasonable. See 28 U.S.C. § 2254(d)(1). Together, Jackson and the AEDPA require a "double dose of deference that can rarely be surmounted." Boyer v. Belleque, 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. See Ylst v. Nunnemaker, 111 S.Ct. 2590, 2594 (1991). 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:

         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, 92 0 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 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 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 ...

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