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Stewart v. Davis

United States District Court, N.D. Texas, Fort Worth Division

July 22, 2019

LORIE DAVIS, DIRECTOR, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         Before 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.[1] After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

         I. BACKGROUND

         In 2014 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- 24.[2] 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.[3] Tex. Code Crim. Proc. Ann. arts. 11.07, § 4, 11.073 (West 2015 & Supp. 2017).

         The state appellate court set forth the facts of the case as follows:

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.

         II. ISSUES

         Petitioner 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.


         Respondent 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. 31.


         A. Standard of Review

         A § 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.

         Additionally, 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.

         Further, 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).

         Finally, 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).

         Petitioner 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.

         B. Perjured/False Testimony

         A 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.

         Based 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 vehicle first.
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 over.
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 here.
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 ...

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