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Penton v. Davis

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

July 26, 2019

FOREST PENTON, JR., (TDCJ-CID #1929674) Petitioner,
LORIE DAVIS, Respondent.



         Petitioner, Forest Penton, Jr., seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a conviction in the 185th Judicial District Court of Harris County, Texas. Respondent filed a motion for summary judgment, (Docket Entry No. 16), and copies of the state court record. Penton has filed his response. (Docket Entry No. 18). The threshhold issue is whether this Court should grant the respondent's motion for summary judgment.

         I. Background

         A jury found Penton guilty of the felony offense of possession of methamphetamine. (Cause Number 1384434). On May 15, 2014, the court sentenced Penton to thirty-two years imprisonment. The Fourteenth Court of Appeals of Texas affirmed Penton's conviction on March 22, 2016. The Texas Court of Criminal Appeals refused Penton's petition for discretionary review on July 27, 2016. Penton filed an application for state habeas corpus relief on July 13, 2017, which the Texas Court of Criminal Appeals denied without written order, on findings of the trial court, without a hearing on May 2, 2018. Ex parte Penton, Application No. 87, 503-02 at cover.

         On June 28, 2018, this Court received Penton's federal petition. Penton contends that his conviction is void for the following reasons:

(1) His Fourth Amendment right was violated because there was insufficient evidence to show that law enforcement had probable cause to stop his nephew's vehicle;
(2) The police stopped his nephew's vehicle without probable cause and conducted an illegal search and seizure, violating his Fourth Amendment right;
(3) Trial attorney, Randall J. Ayers, rendered ineffective assistance by failing to fully address, argue, and preserve his claim of an illegal search and seizure; and
(4) His right to due process was violated during the state habeas proceedings because the habeas court created new factual findings that supplanted those of the trial judge.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 6-7).

         II. The Applicable Legal Standards

         This Court reviews Penton's petition for writ of habeas corpus under the federal habeas statutes, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir. 1997), citing Lindh v. Murphy, 521 U.S. 320 (1997).

         Sections 2254(d)(1) and (2) of AEDPA set out the standards of review for questions of fact, questions of law, and mixed questions of fact and law that result in an adjudication on the merits. An adjudication on the merits "is a term of art that refers to whether a court's disposition of the case is substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). A state-court determination of questions of law and mixed questions of law and fact is reviewed under 28 U.S.C. § 2254(d)(1) and receives deference unless it "was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is "contrary to" Supreme Court precedent if: (1) the state court's conclusion is "opposite to that reached by [the Supreme Court] on a question of law" or (2) the "state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite result. Williams v. Taylor, 120 S.Ct. 1495 (2000). A state court unreasonably applies Supreme Court precedent if it unreasonably applies the correct legal rule to the facts of a particular case, or it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 1495. Questions of fact found by the state court are "presumed to be correct... and [receive] deference . . . unless it 'was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Hill, 210 F.3d at 485 (quoting 28 U.S.C. § 2254(d)(2)).

         A state court's factual findings are entitled to deference on federal habeas corpus review and are presumed correct under section 2254(e)(1) unless the petitioner rebuts those findings with "clear and convincing evidence." Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citing Hughes v. Dretke, 412 F.3d 582, 589 (5th Cir. 2005) and 28 U.S.C. § 2254(e)(1)). This deference extends not only to express findings of fact, but to the implicit findings of the state court as well. Garcia, 454 F.3d at 444-45 (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)).

         While, "[a]s a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases," Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.), cert, denied, 531 U.S. 831 (2000), the rule applies only to the extent that it does not conflict with the habeas rules. Section 2254(e)(1) - which mandates that findings of fact made by a state court are "presumed to be correct" - overrides the ordinary rule that, in a summary judgment proceeding, all disputed facts must be construed in the light most favorable to the nonmoving party. Unless the petitioner can "rebut[ ] the presumption of correctness by clear and convincing evidence" as to the state court's findings of fact, those findings must be accepted as correct. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).

         Penton is proceeding pro se. A pro se habeas petition is construed liberally and not held to the same stringent and rigorous standards as pleadings filed by lawyers. See Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th Cir. 1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271 (5th Cir. Unit A June 1981). This Court broadly interprets Penton's state and federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).

         III. Statement of Facts

         The appellate court summarized the evidence at trial as follows:

Appellant was a passenger in his nephew's car when Deputy Michael Santos noticed the traffic light turn yellow and the car attempt to speed through the light. The light turned red before the car passed underneath it. Deputy Santos initiated a traffic stop and approached appellant while his partner approached the driver. Deputy Santos testified that as he approached the car, appellant began to squirm around, so he restrained appellant using handcuffs and placed appellant in the back of a patrol car. Deputy Santos recovered two baggies containing a crystal-like substance from the car, and as he was placing the baggies in the patrol car, appellant stated that the "stuff belonged to him, not to his nephew.
Appellant was charged by indictment with possession with intent to deliver methamphetamine weighing more than four grams and less than two hundred grams. The indictment included two enhancement paragraphs, each alleging a prior felony conviction. Appellant pleaded, "not guilty," to the charge but pleaded "true" to the enhancement paragraphs. Appellant filed a motion to suppress evidence of his oral statements to police officers. The trial court denied the motion to suppress. The jury convicted appellant of the lesser-included offense of possession of methamphetamine and assessed punishment at thirty-two years' confinement.

Penton v. State, No. 14-14-00406-CR, 489 S.W.3d 578 (Tex. App. -- Houston [14th Dist] 2016, pet. ref d).

         IV. The Claims Based on a Violation of the Fourth Amendment

         (Grounds 1 & 2)

         In his first ground for federal habeas relief, Penton argues that nothing in Texas law indicates that it is a traffic violation if a vehicle enters an intersection while a traffic light is signaling yellow, but fails to clear the intersection before the light turns to red. Since this is not a traffic violation, officers lacked any "probable cause" to pull the vehicle over for a traffic stop. (Docket Entry No. 4, p. 5).

         In his second ground, Penton argues that probable cause did not exist to support the warrantless search and seizure of the vehicle in which he was a passenger. (Docket Entry No. 4, pp. 6-8).

         The United States Supreme Court has significantly narrowed the scope of federal habeas review of Fourth Amendment claims based on principles of comity and respect for the finality of state court judgments. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court stated: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Id., 428 U.S. at 494. The bar to federal habeas relief set forth in Stone v. Powell applies even if the petitioner has failed to avail himself of the state court processes in place to challenge an unlawful search and seizure. See Janecka v. Cockrell, 301 F.3d 316, 320 (5th Cir. 2002). The 'opportunity for full and fair litigation' means just that: 'an opportunity.' 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 Fourth Amendment claim, Stone v. Powell bars federal habeas corpus consideration of that claim whether or not the defendant employs those processes.

         Penton had ample opportunity to raise a Fourth Amendment claim during pre-trial proceedings before the state trial court. The trial court conducted a suppression hearing on May 13, 2014. (Reporter's Record, Vol. Ill. pp. 1-72). The State of Texas provided an opportunity for full and fair litigation of petitioner's Fourth Amendment claim of an illegal arrest both at the trial and habeas review levels. Consequently, even if there were some unspecified evidence resulting from an illegal arrest, this ground alleging a Fourth Amendment violation is barred from federal habeas collateral review by Stone v. Powell and is denied.

         V. The Claim of Ineffective Assistance of Trial Counsel

         (Ground 3)

         Penton contends that his trial attorney rendered ineffective assistance by failing to properly address, argue, and preserve his claim that the traffic stop was illegal. He contends that there was an almost absolute absence of true ...

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