United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
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.
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). He pleaded true to an
enhancement and was sentenced to thirteen years confinement
in TDCJ (id. at 93).
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).
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.
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.
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
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.
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.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. 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.
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).
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).
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
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
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.
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).
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). 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
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
Pro Se Pleadings
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.
The Anti-Terrorism and Effective Death Penalty
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.
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).
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.
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).
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.
amended federal petition (Dkt. 5) lists fourteen claims for
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
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 ...