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Terrell v. Davis

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

July 1, 2019

SHERON GABRIEL TERRELL, TDCJ # 01779108, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS, JR. UNITED STATES DISTRICT JUDGE

         State inmate Sheron Gabriel Terrell, who proceeds pro se, is incarcerated in the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”). Terrell filed a petition for a federal writ of habeas corpus seeking relief from a state court conviction (Dkt. 1), which he later amended (Dkt. 4, Dkt. 5). Respondent Lorie Davis filed an answer (Dkt. 16) and a copy of the state court records (Dkt. 17, Dkt. 18). Petitioner filed a response (Dkt. 31). Petitioner's claims are ripe for decision. Having now considered the petition, briefing, all matters of record, and the applicable legal authorities, the Court determines that the petition should be denied for the reasons that follow.

         I.BACKGROUND

         A. Procedural Background

         Petitioner was charged by indictment with possession of a controlled substance (cocaine). In March 2012, he was tried and sentenced before a jury in the 56th Judicial District Court for Galveston County, Texas, Hon. Lonnie Cox presiding, No. 11CR1752 (Dkt. 17-18, at 93-96).[1] He pleaded true to an enhancement and was sentenced to thirteen years confinement in TDCJ (id. at 93).

         Terrell appealed to the First Court of Appeals, which affirmed on January 7, 2014. Terrell v. State, No. 01-12-00404-CR, 2014 WL 50802 (Tex. App.-Hou. [1st Dist.], 2014, pet. ref'd); see Dkt. 17-7. On November 19, 2014, the Texas Court of Criminal Appeals refused Terrell's petition for discretionary review (Dkt. 17-16).

         On August 24, 2015, Terrell executed a pro se application for state habeas relief (WR-81, 510-02) (Dkt. 18-21, at 4-62; Dkt. 18-22, at 1-26). The Texas Court of Criminal Appeals remanded the application to the trial court to allow the trial judge to enter findings of fact and conclusions of law. Ex parte Terrell, No. WR-81, 510-02, 2016 WL 1471903 (Tex. Crim. App. Apr. 13, 2016); Dkt. 18-18. On June 22, 2016, after the trial court denied relief, the Court of Criminal Appeals denied the habeas application on the trial court's findings without written order (Dkt. 18-14).

         On July 6, 2016, Petitioner timely executed a pro se petition for writ of habeas corpus (Dkt. 1) in these proceedings. He subsequently amended his petition with leave of the court. See Dkt. 4, Dkt. 5, Dkt. 6.

         B. Factual Background

         In March 2012, Terrell was convicted by a jury of possession of cocaine in the amount of more than one gram and less than four grams and sentenced to thirteen years in TDCJ (Dkt. 17-18, at 93-96). The court of appeals summarized the relevant facts as follows:

Officer Hassan Mustafa of the Galveston Police Department was patrolling near the intersection of 27th Street and Avenue K, a frequent site of criminal drug transactions. He was standing outside his car, a “blacked out” patrol unit, when he observed Terrell and an unidentified white man walk up to each other and exchange something quickly, hand-to-hand. Mustafa recognized Terrell, as he had previously stopped him for minor misbehavior, “like walking in the roadway, ” and knew that he was involved in the drug trade.
Terrell and the white man parted ways. Mustafa reentered his car and made a U-turn to approach Terrell from behind. When Terrell saw him, he jumped to the sidewalk, behind a parked car. Mustafa told him, “Hey, come here.” Terrell then reached down with his hands and threw something on the ground. Since Mustafa could not see Terrell's hands during this motion, he pulled out his taser and switched commands, telling Terrell to place himself on the ground. Terrell complied and was placed in handcuffs. Once a backup unit arrived, Mustafa found a small plastic bag five or six feet away from where he had detained Terrell. The bag contained a beige rock that proved to be crack cocaine. After the rock was discovered, Terrell addressed the officer by name, saying: “Mustafa, you pulled a magical maneuver on me.”
Before his trial, Terrell moved to suppress evidence of the crack rock. The trial judge held a hearing and denied the motion. At trial, a jury convicted Terrell of possessing between one and four grams of cocaine. It found true the prosecution's enhancement allegation-that Terrell previously had been convicted of felony evidence tampering-and sentenced him to thirteen years imprisonment and a $2, 500 fine. This appeal followed.

Terrell, 2014 WL 50802, at *1.

         As referenced in the appellate opinion, the trial court held a pretrial suppression hearing on March 23, 2012 (Dkt. 18-1). At the hearing, the Court addressed two motions to suppress, one filed by Terrell's trial counsel and a second that Terrell filed pro se.[2]Terrell raised many of the same allegations he relies on in these federal habeas proceedings, challenging factual statements in Mustafa's arrest warrant affidavit and the magistrate judge's probable cause finding.[3] First, Terrell testified that he had not exchanged anything with the white man and had not thrown anything to the ground (Dkt. 18-1, at 42, 46). His counsel cross-examined Mustafa and highlighted inconsistencies in his statements, arguing that Mustafa was too far away to have observed the transaction as he claimed and thus lacked probable cause (id. at 26-31, 52-53). Counsel's advocacy at the hearing supported a key assertion in Terrell's pro se motion to suppress, namely, that it was “a physical impossibility” for Mustafa to have personally observed both the transaction and Terrell throwing an object to the ground because Mustafa had not actually made a U-turn as he claimed. Terrell asserted that, rather than making a U-turn, Mustafa actually had traveled around the block in his patrol car between the time of the transaction and the detention.[4]

         Second, Terrell testified at the hearing that Mustafa had not actually found drugs on the ground, as Mustafa averred in his arrest warrant affidavit. See Dkt. 18-1, at 48 (Terrell testified that Mustafa “never found anything”). Rather, Terrell claimed that a third officer, who arrived twenty minutes after Mustafa detained Terrell, “got out of his car . . . [and] told Officer Mustafa he found something on the ground” (id.). This testimony supported his theory in his pro se motion (Dkt. 17-18, at 22), which he continues to pursue in these federal habeas proceedings, that the third officer “planted” drugs at the scene. On cross-examination by Terrell's counsel, Mustafa provided an account consistent with his affidavit, testifying that he had found the drugs on the ground as soon as the first backup arrived, which was less than a minute after he had detained Terrell, and that the unidentified third officer, who arrived “a minute or two later, ” had not found the drugs (Dkt. 18-1, at 33-35).

         The trial court denied the motion to suppress, ruling that Mustafa's testimony was credible and that Terrell lacked standing on the suppression issue because he did not acknowledge any connection to the cocaine found on the ground (id. at 54-55). The court also found “ample probable cause” for the arrest (id. at 55). After trial, the court issued findings of fact and conclusions of law reiterating its holdings and specifically found, based on the evidence at the suppression hearing, that Mustafa had observed Terrell engage in a transaction, that Mustafa also observed Terrell “throw something from his hand while Mr. Terrell was standing behind a car, ” that Mustafa then found a “small plastic bag in containing a beige rock in the vicinity of where Mr. Terrell had previously thrown the object, ” and that the rock tested positive for cocaine (Dkt. 17-18, at 104). The court concluded that Mustafa had a reasonable suspicion of criminal activity when detaining Terrell and, after finding the drugs, had probable cause to arrest him (id. at 105).

         Terrell's trial began on March 27, 2012 (Dkt. 18-4). Officers Mustafa and the first backup officer both testified for the prosecution, as well as an evidence custodian and the forensic scientist who tested the evidence. Terrell testified in his own defense, against the advice of his counsel (id. at 91). He testified that he had not exchanged drugs that night but had spoken to a white man who asked him for money (id. at 93-94). As at the suppression hearing, he testified that the unidentified third officer, who arrived more than ten minutes after Terrell was detained, handed a package to Mustafa and said that he had found drugs (id. at 99-101). The jury returned a guilty verdict and assessed punishment of thirteen years in TDCJ and a $2500 fine.[5]

         The trial court appointed Calvin D. Parks to represent Terrell on direct appeal. After Parks failed to file a timely brief, the appellate court abated the proceedings and remanded to the trial court for findings (Dkt. 17-8). The court then found that good cause existed to remove Parks and appointed substitute appellate counsel, James DuCote (Dkt. 17-19, at 10).

         Terrell's appellate brief filed by DuCote raised two issues. First, Terrell claimed that Officer Mustafa should not have been permitted to testify that the area he was patrolling was a “high crime area” without inquiry into Mustafa's expert qualifications. The appellate court rejected this ground, holding that Terrell had failed to preserve error for review. Terrell, 2014 WL 50802, at *2. Second, he claimed that the trial court erred in its denial of his motion to suppress evidence of cocaine because Terrell's initial detention by Mustafa, during which the evidence was discovered, was not supported by a reasonable suspicion of criminal activity. The appellate court held that the record at the suppression hearing was sufficient to establish reasonable suspicion to detain Terrell because Mustafa had witnessed a quick exchange between Terrell and a white man, because the transaction occurred in an area known for frequent drug trades, and because Terrell was known to Mustafa as a person involved in the drug trade. Id. at *3. Therefore, the “resulting discovery of the cocaine could not have been the consequence of an unlawful investigatory detention, ” and the trial court's denial of the motion to suppress was not error. Id. The appellate court affirmed Terrell's conviction.

         Terrell did not file a timely petition for discretionary review with the Texas Court of Criminal Appeals. However, he filed a pro se application for habeas relief (WR-81, 510-01). The Court of Criminal Appeals granted habeas relief, based on the recommendation of the trial court, because Terrell's appellate counsel had “failed to timely notify [Terrell] that his conviction had been affirmed, ” and granted Terrell an opportunity to file an out-of-time petition for discretionary review. Ex parte Terrell, No. WR-81, 510-01, 2014 WL 2921839 (Tex. Crim. App. June 25, 2014); see Dkt. 18-11, at 2. Terrell then filed a pro se petition for discretionary review (Dkt. 17-17), which the Court of Criminal Appeals refused on November 19, 2014 (Dkt. 17-16).

         On August 24, 2015, Terrell executed his state habeas application (WR-81, 510-02) raising fourteen claims for relief, including challenges to the trial court's denial of the motion to suppress and claims that his trial and appellate counsel were constitutionally ineffective (Dkt. 18-21, at 4-62; Dkt. 18-22, at 1-26).[6] The trial court ordered counsel to provide affidavits in response to Terrell's claims (id. at 32-35). Appellate counsel DuCote timely filed his affidavit (id. at 41-47), but trial counsel did not. On or about March 7, 2016, the trial court clerk transmitted Terrell's habeas application to the Court of Criminal Appeals. Ex parte Terrell, No. WR-81, 510-02, 2016 WL 1471903 (Tex. Crim. App. Apr. 13, 2016); see Dkt. 18-18. The Court of Criminal Appeals held the application in abeyance and remanded to the trial court to allow the trial judge to enter findings of fact and conclusions of law, noting that trial counsel had not yet submitted an affidavit. Terrell, 2016 WL 1471903, at *1.

         On May 11, 2016, trial counsel filed an affidavit that addressed Petitioner's claims (Dkt. 18-19, at 8-10). On May 16, 2016, the trial court entered findings of fact and conclusions of law recommending denial of habeas relief, based in part on counsels' affidavits. The findings and conclusions read as follows:

This Trial Court finds that there is no necessity for a fact finding hearing because there is ample evidence from the State's answer, the State's supplemental answer, Counsel's affidavit (attached), and Appellate Counsel's affidavit (attached) and the Trial Court's record to rule on the relief sought.
This Trial Court finds that the representations contained in the State's Answer, State's Supplemental Answer, and said affidavits are correct and credible. This Trial Court finds Applicant hasn't shown his trial attorney or appellate attorney were ineffective. This Trial Court finds the outcome of the proceedings wouldn't have been different but for counsels' alleged errors.
Moreover, the Trial Court finds that there are no controverted previously unresolved facts or issues exist which would entitle Applicant to relief and that Applicant's claims have no legal merit.
This Trial Court recommends relief be denied.

(id. at 26-27). The Court of Criminal Appeals then denied the application on the trial court's findings without written order (Dkt. 18-14). These federal proceedings followed.

         II. LEGAL STANDARDS

         A. Pro Se Pleadings

         Federal courts do not hold pro se habeas petitions “to the same stringent and rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (internal quotation marks and citation omitted). “The filings of a federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal construction.” Id.

         B. The Anti-Terrorism and Effective Death Penalty Act

         This federal petition for habeas corpus relief is governed by the applicable provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). Under the AEDPA, federal habeas relief based upon claims that were adjudicated on the merits by the state courts cannot be granted unless the state court's decision (1) “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or (2) “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); Early v. Packer, 537 U.S. 3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012).

         Federal courts look to the “last reasoned opinion” as the state court's “decision.” Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012); see Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). “Where a state court's decision is unaccompanied by an explanation, ” and the lower courts did not issue a reasoned opinion, “the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.” Harrington v. Richter, 526 U.S. 86, 98 (2011); see Johnson v. Williams, 568 U.S. 289, 293 (2013) (holding that there is a rebuttable presumption that the federal claim was adjudicated on the merits when the state court addresses some claims, but not others, in its opinion).

         Review under the AEDPA is “highly deferential” to the state court's decision. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under AEDPA, a petitioner may not merely show legal error in the state court's “decision.” White v. Woodall, 517 U.S. 415, 419 (2014) (stating being “merely wrong” or in “clear error” will not suffice federal relief under AEDPA). AEDPA review exists only to “guard against extreme malfunctions in the state criminal justice systems.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (internal citation and quotation marks omitted). “[F]ocus[ing] on what a state court knew and did, ” Cullen v. Pinholster, 563 U.S. 170, 182 (2011), the AEDPA requires inmates 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.'” Woodall, 572 U.S. at 419-20 (quoting Richter, 562 U.S. at 103). “If this standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.

         For questions of law or mixed questions of law and fact adjudicated on the merits in state court, this Court may grant habeas relief under 28 U.S.C. § 2254(d)(1) only if the state court decision “was contrary to, or involved an unreasonable application of, clearly established” Supreme Court precedent. See Kittelson v. Dretke, 426 F.3d 306, 318 (5th Cir. 2005). Under the “contrary to” clause, this Court may afford habeas relief if the state court “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) (internal quotation marks and citations omitted). To constitute an “unreasonable application” of clearly established federal law, the state court's determination “must be objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods, 135 S.Ct. at 1376 (internal citation and quotation marks omitted).

         On factual issues, the AEDPA precludes federal habeas relief unless the state court's adjudication of the merits was based on an “unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C. § 2254(d)(2); Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).

         III.ANALYSIS

         Terrell's amended federal petition (Dkt. 5) lists fourteen claims for relief:

1. The magistrate violated his Fourth Amendment rights when he abandoned his judicial role and “failed to perform his neural and detached function.” 2. The State violated the Fourth Amendment when it deprived him a full hearing and therefore denied him due process of law.
3. The State suppressed the identify of a third police officer on the scene of Petitioner's arrest and therefore denied him due process of law.
4. The State used or failed to correct false testimony and therefore denied Petitioner due process of law.
5. Petitioner's trial counsel rendered constitutionally ineffective assistance in connection with the following:
a. Failure to litigate Fourth Amendment claims, in particular, Claims 1 and 2 above;
b. Failure to impeach Officer Mustafa with a prior inconsistent statement;
c. Failure to object to prosecutorial misconduct;
d. Failure to investigate the identity of the third police officer on the scene;
e. Failure to produce evidence in support of Petitioner's pretrial motion to suppress;
f. Failure to file a motion for continuance;
g. Failure to object to erroneous jury ...

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