United States District Court, N.D. Texas, Fort Worth Division
OPINION AND ORDER
O'CONNOR, UNITED STATES DISTRICT JUDGE
the Court are the consolidated petitions for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner,
Benjamon Ray Stewart, a state prisoner confined in the
Correctional Institutions Division of the Texas Department of
Criminal Justice, against Lorie Davis, director of that
division, Respondent. After considering the pleadings and relief
sought by Petitioner, the Court has concluded that the
petition should be denied.
in Tarrant County, Texas, Nos. 1336013D, 1336014D, 1336015D,
and 1336016D, a jury found Petitioner guilty of three counts
of intoxication manslaughter with a vehicle and answered
affirmatively to the “special issue” on a deadly
weapon and one count of failure to stop and render aid in an
accident involving injury or death. 01SHR, vol. 2, 701, ECF
No. 34-14; 02SHR, vol. 2, 724, ECF No. 35-17; 03SHR, vol. 2,
704, ECF No. 36-20; 04SHR, vol. 2, 709, ECF No. 37-
The trial court subsequently assessed Petitioner's
punishment at 12 years' confinement in Nos. 1336013D and
1336014D, 10 years' confinement in No. 1336015D to run
consecutively with Nos. 1336013D and 1336014D, and 5
years' confinement in No. 1336016D to run concurrently
with Nos. 1336013D and 1336014D. Petitioner's convictions
were affirmed on appeal and the Texas Court of Criminal
Appeals refused his petition for discretionary review. Docket
Sheet 2, ECF No. 33-2. Petitioner also challenged his
convictions in four postconviction state habeas-corpus
applications, which were denied by the Texas Court of
Criminal Appeals without written order. Petitioner asserts
that he filed four subsequent state habeas-corpus
applications pursuant to article 11.073 of the Texas Code of
Criminal Procedure (entitled “Procedure Related to
Certain Scientific Evidence”), which were dismissed by
the Texas Court of Criminal Appeals as subsequent
applications. Tex. Code Crim. Proc. Ann. arts. 11.07,
§ 4, 11.073 (West 2015 & Supp. 2017).
state appellate court set forth the facts of the case as
On July 23, 2013 from 6:30 p.m. until approximately 10:30
p.m., [Petitioner] played pool and drank three or four beers
at a bar in Fort Worth. After leaving the bar, [Petitioner]
made purchases at a nearby Walmart store, once at 11:31 p.m.
and again at 12:46 a.m. A Walmart employee, who helped
[Petitioner] load his items into his truck after his second
shopping trip, noticed that [Petitioner] had a “kind of
strong” smell of alcohol on his breath. After his items
were loaded, [Petitioner] asked the Walmart employee where he
could “get some more alcohol.” Meanwhile, Najib
Intidam, his wife Hanane Bakchine, and their eleven-month-old
daughter Nour Elhouda Intidam were also shopping at the same
Walmart store during the early morning hours of July 24,
2013. When they left Walmart at 2:13 a.m. in their Toyota
Camry, Najib was the driver, Hanane was in the front
passenger seat, and Nour was in a car seat behind Najib in
the backseat. Video footage showed that their car had working
headlights, tail lights, and brake lights.
A little after 2:00 a.m., Roy Hammonds Sr. stopped behind
[Petitioner]'s truck at a red traffic light located at an
intersection to a highway feeder road near the Walmart. When
the light turned green, [Petitioner] did not move. Hammonds
waited a few seconds and then honked his horn, which caused
[Petitioner] to pull through the intersection. As
[Petitioner] went to make a left onto the feeder road, he
swung wide on his turn, running over a curb and almost
hitting a light pole. Hammonds then made the same left turn
onto the feeder road but lost sight of [Petitioner]'s
truck after [Petitioner] sped off once he got on the highway.
Ten to fifteen seconds later, Hammonds saw [Petitioner]'s
truck parked on a grassy embankment next to the far right
lane of the highway. In the middle lane of the highway,
Hammonds saw what he thought was a large load of trash that
had dropped off a garbage truck; however, he soon realized
that it was a “demolished” Toyota Camry with no
functioning lights. Hammonds described the Camry as
“like a sheet of tinfoil you wadded it up and threw it
down.” He pulled over in front of [Petitioner]'s
truck and saw that [Petitioner] was standing next to his
truck, inspecting it for damage. Hammonds called 911 and
left, not realizing that three people remained in the Camry.
At approximately 2:20 a.m. that morning, Bruce Sloan was
traveling on the highway in his truck, towing a twenty-foot
trailer. Sloan was driving in the middle lane when he saw
what he thought was a dumpster in the road immediately in
front of his truck. Unable to stop, Sloan crashed into the
object in the middle lane. Sloan's truck stalled, and the
Camry was pushed forward toward the inside lane of the
highway, rotating so that it faced oncoming traffic. Sloan
got out of his truck and called 911.
James Lopez Sr. was driving in the center lane of the highway
and saw a car's headlights pointing towards him and other
cars on the highway “start to swerve.” He
immediately pulled over to the far left side of the highway
and “ran back to the car to check on the people.”
Lopez went to the driver's side and found Najib slumped
underneath the steering wheel, breathing but unresponsive.
Hanane was in the passenger seat sprawled across the console
“like a plank, real stiff” and also unresponsive.
Lopez saw Nour trapped underneath Hanane in the front
passenger seat and believed that Nour was “already
dead.” Najib was declared dead at the scene; Hanane and
Nour died a short time later.
A person at the scene of the crash told a police officer that
he had seen [Petitioner] run from his truck up a hill next to
the highway into a “thick treeline.” The officer
asked the fire department to use a thermal camera to help
locate [Petitioner]. A firefighter and two police officers
used the thermal camera and found [Petitioner] lying on his
stomach buried underneath the brush in the treeline. As an
officer handcuffed [Petitioner], he noticed a very strong
smell of alcohol coming from [Petitioner] and that
[Petitioner] could not balance as he walked down the hill.
The officers put [Petitioner] in the back of a police car and
requested that a DWI officer be dispatched to the scene to
perform field-sobriety tests. The DWI officer arrived at the
accident scene at 3:19 a.m., one hour after the crash. He
approached [Petitioner] and “immediately became
overwhelmed” by the odor of alcohol on
[Petitioner]'s breath. The DWI officer also saw that
[Petitioner]'s eyes were glassy and bloodshot and that
his speech was slurred. [Petitioner] failed the
horizontal-gaze-nystagmus test, the walk-and-turn test, and
the one-leg-stand test. The DWI officer obtained a search
warrant for a sample of [Petitioner]'s blood, which
revealed that [Petitioner] had an alcohol concentration of
0.289 four hours after the crash occurred. Because of the
natural dissipation of alcohol, [Petitioner]'s alcohol
concentration at the time of the accident four hours earlier
likely was higher than 0.289.
Mem. Op. 2-5, ECF No. 33-4.
has filed an avalanche of handwritten pleadings in this
action, and his grounds for relief are multifarious, often
vague and rambling, and largely conclusory. As such, the
claims are addressed as thoroughly as practical. They appear
to fall within the following general categories:
(1) perjured/false testimony;
(2) ineffective assistance of counsel;
(3) due process violations; and
(4) actual innocence.
Pet. 6-7, 12-15, ECF No. 6; Consol. Pet. 6-7, ECF No. 1.
RULE 5 STATEMENT
believes that Petitioner sufficiently exhausted his state
remedies as to the claims raised and that the petition is not
successive or time-barred. Resp't's Answer 7, ECF No.
Standard of Review
§ 2254 habeas petition is governed by the heightened
standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C. § 2254.
Under the Act, a writ of habeas corpus should be granted only
if a state court arrives at a decision that is contrary to or
an unreasonable application of clearly established federal
law as determined by the United States Supreme Court or that
is based on an unreasonable determination of the facts in
light of the record before the state court. 28 U.S.C. §
2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86,
100-01 (2011). This standard is difficult to meet and
“stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state
proceedings.” Richter, 562 U.S. at 102.
the statute requires that federal courts give great deference
to a state court's factual findings. Hill v.
Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section
2254(e)(1) provides that a determination of a factual issue
made by a state court shall be presumed to be correct. It is
the petitioner's burden to rebut this presumption by
clear and convincing evidence. Id.
when the most recent state court to consider a constitutional
issue provides a “reasoned opinion, ” a federal
habeas corpus court must “review[ ] the specific
reasons given by the state court and defer[ ] to those
reasons if they are reasonable.” Wilson v.
Sellers, - U.S. -, 138 S.Ct. 1188, 1191-92 (2018). Under
those circumstances, a federal court should
“‘look through' the unexplained decision to
the last related state-court decision providing”
particular reasons, both legal and factual, “presume
that the unexplained decision adopted the same reasoning,
” and give appropriate deference to that decision.
Id. In other words, federal habeas-corpus courts
confronted with an unexplained state court decision
“are to ‘look through' the decision to an
earlier state court opinion and presume that the earlier one
provides the relevant rationale.” Thomas v.
Vannoy, 898 F.3d 561, 568 (5th Cir. 2018) (citing
Wilson, 138 S.Ct. at 1192).
when the Texas Court of Criminal Appeals denies relief in a
state habeas-corpus application without written order, it is
a denial on the merits. Ex parte Torres, 943 S.W.2d
469, 472 (Tex. Crim. App. 1997). Under those circumstances, a
federal court may assume the state court applied correct
standards of federal law to the facts, unless there is
evidence that an incorrect standard was applied, and imply
fact findings consistent with the state court's
disposition. Townsend v. Sain, 372 U.S. 293, 314
(1963); Catalan v. Cockrell, 315 F.3d 491, 493 n.3
(5th Cir. 2002); Valdez v. Cockrell, 274 F.3d 941,
948 n.11 (5th Cir. 2001); Goodwin v. Johnson, 132
F.3d 162, 183 (5th Cir. 1997).
has not brought forth clear and convincing evidence to rebut
the state courts' factual findings relevant to the issues
raised. Therefore, the Court defers to all relevant
state-court findings in the discussion below.
common thread throughout Petitioner's pleadings is that
the state's expert accident reconstructionist, Tim
Lovett, gave false or perjured testimony regarding the
damages to Petitioner's truck and the crippling of the
victims' car. According to Petitioner, as explained in
his state habeas proceedings (all spelling, punctuation,
and/or grammatical errors are in the original)--
[w]ith over 20 years experience, the state expert accident
reconstructionist diligently explained, at length, to the
jury that I was guilty . . . because the damage on my
pickup-they said-came from hitting, and disabling, a Toyota
for a F450 to hit and kill them. This was the states case
against me. Then, on the 4th day, while being asked about gas
in the Toyota, he casually said he “matched” my
damage to a sign I hit. This makes all his prior testimony
false or perjured! . . . If my damage did not come from
hitting, and disabling, the Toyota, but from hitting a
sign-then a hit and run driver had to hit very hard and
disable the Toyota for the F450 to come hit and kill them.
01SHR, vol. 1, 15-16, ECF No. 34-1.
on counsel's affidavit, see infra, the
documentary record, and his own recollection of the trial
proceedings, the state habeas judge entered the following
factual findings on the issue (any spelling, punctuation,
and/or grammatical errors are in the original):
86. Mr. Tim Lovett testified on August 29, 2014, and
September 3, 2014.
87. Mr. Lovett did not testify that [Petitioner] was
“guilty.” 88. Mr. Lovett testified that “at
the time of [the collision with [Petitioner]] [the
victim's vehicle]'s driven down into the pavement,
[and] the vehicle [was] disabled at that point. Toyota Camry
has what [the industry calls] an inertial fuel control switch
that is mounted on the top of the tank.” 89. Mr. Lovett
explained that the collision with [Petitioner]'s vehicle
disabled the victim's vehicle because “when that
vehicle gets slammed in a collision, the fuel pump shuts off,
the car will die at that point and then it's going to go
to the end of its path with whatever speed it has left. Then
what's required to reset that inertial switch on the
Toyota requires a cycling of the key cycle before it will
reset.” 90. Mr. Lovett testified that, after
[Petitioner]'s vehicle hit the victim's vehicle, the
victim's vehicle had no power steering and no taillights.
91. Mr. Lovett testified that there was no indication that
the F-450 that ultimately hit the victim's vehicle would
have hit it had [Petitioner] not struck the victim's
92. Mr. Lovett testified that, in his opinion,
[Petitioner]'s intoxication was “the cause”
of the victim's deaths.
93. Mr. Lovett testified on direct examination that
[Petitioner]'s vehicle struck a highway sign.
94. When discussing the damage to [Petitioner]'s vehicle
on direct examination, Mr. Lovett testified as follows:
Q: How about your review of the physical condition of
[Petitioner's] pickup? . . .
Q: Now, State's Exhibit No. 142?
A: There's a lot here.
Q: Okay. Can you tell us what this front vision of the Dodge
pickup tells you as far as the collisions are involved?
A: Okay. Again, you've got contact damage here that runs
This is where that paint transfer is, off of that right front
corner. We've got contact damage that runs along here.
You can see movement along here on the top edge of this
plastic bumper cover. More importantly is, if you'll
notice, there is a line that runs from here all the way up to
Q: And by “here, ” you're saying from the
bottom of the pickup truck about in the center?
A: Right here.
Q: Straight upwards?
A: Yes, ma'am.
Q: And it that, that indention, that V, that line, from the
offset collision with the Toyota Camry?
A: Oh, heavens, no.
Q: Where is it from?
A: It's from the sign post holding that orange warning
sign that kicks all of the sandbags out.
Q: How do you tell that that's from the signpost?
A: Because that's the size of the metal piping that holds
the signs up.
Q: So that V indention is not from the contact he made with