United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE.
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.
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
28, 2018, this Court received Penton's federal petition.
Penton contends that his conviction is void for the following
(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.
The Applicable Legal Standards
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).
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)).
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)).
"[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).
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).
Statement of Facts
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
Penton v. State, No. 14-14-00406-CR, 489 S.W.3d 578
(Tex. App. -- Houston [14th Dist] 2016, pet. ref d).
The Claims Based on a Violation of the Fourth
1 & 2)
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).
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.
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.
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.
The Claim of Ineffective Assistance of Trial Counsel
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