Terrell v. Davis
Filing
32
MEMORANDUM OPINION AND ORDER. The petition for a writ of habeas corpus filed by Sheron Gabriel Terrell is DENIED. All pending motions, if any, are DENIED as moot. A certificate of appealability is DENIED. (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
SHERON GABRIEL TERRELL,
TDCJ # 01779108,
Petitioner,
VS.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent.
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July 01, 2019
David J. Bradley, Clerk
CIVIL ACTION NO. 3:16-0179
MEMORANDUM OPINION AND ORDER
State 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.
I.
BACKGROUND
A.
Procedural Background
Petitioner was charged by indictment with possession of a controlled substance
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(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, Case No.
11CR1752 (Dkt. 17-18, at 93-96).1
He pleaded true to an enhancement and was
sentenced to thirteen years confinement in TDCJ (id. at 93).
Terrell 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).
On 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. 18-14).
On July 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.
1
Throughout this Memorandum, the Court’s citations to specific pages in the record refer
to the pagination of docket entries on the Court’s electronic case filing (“ECF”) system.
2 / 39
B.
Factual Background
In 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 on me.”
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.
As referenced in the appellate opinion, the trial court held a pretrial suppression
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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.2
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.3
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
2
Before trial, Petitioner’s appointed trial counsel filed a motion to suppress evidence of
cocaine, arguing that the officers had obtained the drugs as the result of a warrantless seizure of
Terrell without probable cause (Dkt. 17-18, at 41-43). Terrell filed a pro se pretrial motion to
suppress arguing that Mustafa’s arrest warrant affidavit contained “deliberate falsehoods” (id. at
21-23).
3
Officer Mustafa’s arrest warrant affidavit, executed on June 18, 2011 within hours of
arresting Terrell, contained many of the same facts recited in the appellate opinion, including that
Mustafa had observed Terrell and an unknown white male “doing a hand to hand transaction”;
that Terrell ran behind a vehicle when Mustafa gave him a verbal command to get on the ground;
that Mustafa observed Terrell raise his arm and throw a small object from his right hand; and
that, after detaining Terrell, Mustafa walked back to the area where he had seen Terrell throw an
object on the ground and observed a small clear plastic bag with two small, beige rocks, which
field-tested positive for cocaine (Dkt. 17-18, at 24-25). Based on Mustafa’s affidavit, a
magistrate found probable cause for further detention and set bond at $60,000 (id. at 13-14).
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transaction and the detention.4
Second, 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).
The 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
4
See Dkt. 17-18, at 21 (pro se motion to suppress argues that Mustafa’s claim in his arrest
warrant affidavit that he had watched Terrell conduct the transaction and also throw something to
the ground from behind a car was physically impossible because Mustafa was “traveling away
from [Terrell] in [the] patrol car [when he observed the transaction] and had to circle 3 1/2
blocks in order to come back to [Terrell’s] location”); id. at 22 (alleging that Mustafa’s “seeming
ability to see around corners in a moving vehicle is a physical impossibility” and that Mustafa
could not have seen Terrell “walk away, run around a car and throw ‘something’ all while
operating a motor vehicle and traveling a 3 1/2 block route . . . being unable to keep [Terrell] in
line of sight”).
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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).
Terrell’s 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 fine.5
The 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
5
Terrell’s sentence was enhanced by a prior conviction, to which Terrell pleaded true
(Dkt. 17-18, at 93). A second enhancement was abandoned by the State (id.).
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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 10).
Terrell’s 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.
Terrell 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 (WR81,510-01).
The Court of Criminal Appeals granted habeas relief, based on the
recommendation of the trial court, because Terrell’s appellate counsel had “failed to
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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).
On August 24, 2015, Terrell executed his state habeas application (WR-81,51002) 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).6 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
6
Terrell’s fourteen claims in his state habeas application were as follows: (1) Mustafa
lacked probable cause for the arrest and the drugs were obtained unlawfully; (2) the drugs and
Terrell’s conviction were obtained based on an illegal search and seizure; (3) the prosecution
suppressed evidence regarding Mustafa’s falsehoods, the unidentified third officer, and patrol car
video; (4) the prosecution knowingly presented false testimony from Mustafa regarding
circumstances of the arrest; (5) Terrell’s trial counsel was constitutionally ineffective; (6)
Terrell’s first appellate counsel was constitutionally ineffective; (7) the prosecution failed to
disclose patrol car video recording; (8) Terrell’s second appellate counsel was constitutionally
ineffective; (9) Terrell was denied compulsory service of process on the unidentified third
officer; (10) Terrell was denied the right to confront and cross-examine the unidentified third
officer; (11) Terrell was “actually innocent” because he could have established reasonable doubt;
(12) Terrell was denied due process of law due to the violations alleged in the other claims in his
application; (13) the prosecution relied on Mustafa’s affidavit which was “fabricated”; and, (14)
the prosecutor’s closing argument about Mustafa’s credibility was inflammatory and improper.
See Dkt. 18-21, at 4-30 (state habeas application); see also id., at 31-54 (petitioner’s
memorandum); id. at 55-62 (petitioner’s exhibits); Dkt. 18-22, at 1-26 (petitioner’s exhibits).
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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 *1.
On May 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 followed.
II.
LEGAL STANDARDS
A.
Pro Se Pleadings
Federal courts do not hold pro se habeas petitions “to the same stringent and
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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.
B.
The Anti-Terrorism and Effective Death Penalty Act
This 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. 2012).
Federal 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
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adjudicated on the merits when the state court addresses some claims, but not others, in
its opinion).
Review 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.
For 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
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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).
On 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. 2011).
III.
ANALYSIS
Terrell’s amended federal petition (Dkt. 5) lists fourteen claims for relief:
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.
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Failure to litigate Fourth Amendment claims, in particular, Claims 1
and 2 above;
b.
Failure to impeach Officer Mustafa with a prior inconsistent
statement;
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 instructions;
h.
Failure to object to the prosecutor’s closing argument.
6.
7.
The State failed to disclose Officer Mustafa’s video recording and therefore
deprived him of due process of law.
8.
Petitioner’s second appellate counsel rendered constitutionally ineffective
assistance when he filed a frivolous appellate brief.
9.
Petitioner was denied compulsory service on the unidentified third officer
at the scene of his arrest, in violation of his Sixth Amendment rights.
10.
Petitioner was denied the opportunity to confront and cross-examine the
unidentified third officer in violation of his Sixth Amendment rights.
11.
The constitutional errors at Petitioner’s trial led to a miscarriage of justice
in violation of Petitioner’s right to due process of law.
12.
Petitioner was denied due process of law under the Fourteenth Amendment.
13.
Petitioner was “maliciously prosecuted” based on a “fabricated” warrant
from Officer Mustafa, in violation of his constitutional rights.
14.
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Petitioner’s first appellate counsel rendered constitutionally ineffective
assistance when he filed a frivolous Anders brief.
The prosecutor’s closing argument “vouched for the credibility” of the
Officer Mustafa in violation of Petitioner’s right to due process of the law.
(Dkt. 5; see Dkt. 4).
The Court will address Terrell’s claims as follows: (1) Fourth Amendment claims
(Claims 1, 2, and 13); (2) Sixth Amendment claims (Claims 9 and 10); (3) Due Process
Claims (Claims 3, 4, 7, 11, 12, and 14); (4) ineffective assistance of trial counsel claim
(Claim 5); and (5) ineffective assistance of appellate counsel claims (Claims 6 and 8).7
A.
Arrest and Detention Claims (Claims 1, 2, and 13)
Petitioner raises three claims that challenge the lawfulness of his arrest and
detention, invoking the Fourth and Fourteenth Amendments. First, in Claim 1, Terrell
claims that the magistrate who found probable cause shortly after Terrell’s arrest
“abandoned his judicial role and failed to perform his neutral and detached function”
(Dkt. 5, at 1). Second, in Claim 2, Terrell claims that he was denied a full and fair
hearing regarding the allegedly false statements in Officer Mustafa’s arrest warrant
affidavit (id.). Third, in Claim 13, Terrell claims that he was “maliciously prosecuted”
based on Mustafa’s “fabricated” arrest warrant (id. at 3). Terrell’s arguments in these
habeas proceedings rely on facts raised at his pretrial suppression hearing and at trial,
including assertions about whether Mustafa traveled around the block before detaining
7
Terrell apparently has abandoned his claim of actual innocence, which he raised in his
original petition but not his amended petition. See Dkt. 1, at 20 (claiming that the errors listed in
his other claims “probably resulted in the conviction of one who was actually innocent” and
deprived the jury of critical evidence that would have established a reasonable doubt). The Fifth
Circuit does not consider freestanding habeas claims of actual innocence in the absence of
independent constitutional violations, see Floyd v. Vannoy, 894 F.3d 143, 155 (5th Cir.), cert.
denied, 139 S. Ct. 573 (2018), although the Supreme Court has not resolved the issue. See
McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); Herrera v. Collins, 506 U.S. 390, 404-05
(1993). In any event, for the reasons stated below, Terrell’s other habeas claims lack merit and,
moreover, his factual assertions in these proceedings do not demonstrate that the state courts’
determination of guilt was an unreasonable determination of the facts in light of the evidence
presented in the state courts. See 28 U.S.C. § 2254(d)(2).
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him, rather than making a U-turn as Mustafa claimed, and about the late-arriving third
officer whom Terrell claims planted the drugs at the scene (see Dkt. 31, at 18-24).
Terrell apparently argues that, based on defects in the arrest warrant and pretrial
proceedings, the drugs from his arrest should have been suppressed under Fourth
Amendment authority.
Federal habeas relief is not available for Terrell’s Fourth Amendment claims.8
Under Stone v. Powell, federal habeas relief is not available for a claim that evidence
used at trial was obtained pursuant to an unconstitutional search or seizure if the state
“provided an opportunity for full and fair litigation of a Fourth Amendment claim.”
Stone v. Powell, 428 U.S. 465, 494 (1976); see Moreno v. Dretke, 450 F.3d 158, 167 (5th
Cir. 2006). If the state makes the process available, the Stone bar applies, even if the
petitioner did not actually litigate the issue:
It is the existence of state processes allowing an opportunity for full and
fair litigation of fourth amendment claims, rather than a defendant’s use of
those processes, that serves the policies underlying the exclusionary rule
and bars federal habeas corpus consideration of claims under Stone. In
short, the Stone bar applies even where the petitioner did not avail himself
of the litigating opportunity provided by the state courts.
Register v. Thaler, 681 F.3d 623, 628 (5th Cir. 2012) (internal quotation marks, citations,
and footnotes omitted). To overcome the Stone bar, a habeas petitioner must show that
the state’s courts “systematically and erroneously” prevent adjudication of Fourth
Amendment claims. Moreno, 450 F.3d at 167. A petitioner’s showing that the state
8
To the extent Terrell argues that the alleged falsehoods in Mustafa’s arrest warrant
affidavit violated his due process rights, this argument is addressed below in the context of
Claims 4 and 14. Terrell’s argument that his trial counsel rendered ineffective assistance when
litigating Fourth Amendment issues is addressed below in the discussion of Claim 5.
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courts erred in the adjudication of the Fourth Amendment in his particular case is
insufficient. Id. (a state court’s “errors in adjudicating Fourth Amendment claims are not
an exception to Stone’s bar”).
Because Texas “has processes that allow defendants . . . to pursue Fourth
Amendment claims at the trial level and on direct appeal,” the Fifth Circuit has held that
habeas claims like Terrell’s are barred by Stone. See Register, 681 F.3d at 628. In
Moreno, the petitioner claimed that the Texas courts had erred in denying his motion to
suppress the murder weapon, arguing that the affidavit used to secure the search warrant
contained “materially false statements.” Moreno, 450 F.3d at 166. The Fifth Circuit
rejected the claim under Stone because the petitioner had failed to show that Texas courts
systematically prevent adjudication of Fourth Amendment claims. Id. at 167.
In Terrell’s case, the state courts did not prevent the adjudication of his claims. To
the contrary, although he did not prevail, he received a full opportunity to litigate his
Fourth Amendment claim at the pretrial suppression hearing and again on direct appeal.
See Dkt. 18-1 (suppression hearing); Dkt. 17-9 (direct appeal brief). Stone therefore
prevents habeas consideration of his claims. See Moreno, 450 F.3d at 166-67.
Habeas relief for Claims 1, 2, and 13 is denied.
B.
Claims Regarding Third Officer (Claims 9 and 10)
Terrell’s petition raises two claims regarding his constitutional right to compel the
presence of, and to confront, the unidentified third police officer at the scene of his arrest.
These claims arise under the Sixth Amendment, which provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
16 / 39
against him [and] to have compulsory process for obtaining witnesses in his favor.” U.S.
CONST. amend. VI.
In Claim 9, Terrell claims he was denied “compulsory service of the unknown
third officer” to compel his presence as a witness (Dkt. 5, at 2). The Sixth Amendment
guarantees a criminal defendant the right to have compulsory process for obtaining
witnesses in his favor. Boyer v. Vannoy, 863 F.3d 428, 451 n. 122 (5th Cir. 2017), cert.
denied, 139 S. Ct. 54 (2018); see Washington v. Texas, 388 U.S. 14, 23 (1967) (holding
that the petitioner in this case was “denied his right to have compulsory process for
obtaining witnesses in his favor” because the State arbitrarily denied him the right call a
witness “whose testimony would have been relevant and material to the defense”).
Terrell apparently claims in these proceedings, as he did at trial, that the third
officer planted drugs at the scene of his arrest. However, he fails to make any showing
that the third officer’s testimony would have been either favorable or material to his
defense. His amended petition does not recite any facts relevant to the claim, and his
superseded petition merely alleges, with no supporting detail, that the third officer had
“presented the beige rocks” to Mustafa and that the unidentified officer’s testimony was
“exculpatory and impeaching” (Dkt. 1, at 17-18). Moreover, in state habeas proceedings,
his former attorneys provided affidavits refuting his claims. Trial counsel stated that he
had investigated the issue and was satisfied “that further inquiry into the possibility of a
third officer who might have ‘planted’ contraband in order to build a case against
[Terrell] would have been a fruitless investigation” (Dkt. 18-19, at 9). He also explained
that the jury had been made aware of, and had rejected, Terrell’s theory regarding the
17 / 39
third officer (id). Appellate counsel investigated the issue and concluded that, despite
trial counsel’s diligent investigative efforts, “no evidence” supported Terrell’s claims:
Officer Mustafa testified that the third officer only brought him a drug
detection kit. There was no evidence that the third officer took any other
part in the matter. I investigated trial counsel as to whether he made diligent
effort to determine the identity of the third officer, and attempt to locate
him. Trial counsel had made significant efforts to identify and locate the
third officer, but was unsuccessful. Trial counsel ultimately determined
that, even if the third officer could have been identified and located, he had
arrived late, and had no significant part in the event, and concluded that his
presence would have been of no benefit, and might have been detrimental
to Appellant.
(Dkt. 18-22, at 44).
Based in part on these affidavits, the state habeas court held that
Petitioner was not entitled to relief on his Sixth Amendment claims (Dkt. 18-19, at 2627). Terrell makes no showing in these proceedings that the state habeas court’s denial
of relief was unreasonable under § 2254(d).
In Claim 10, Terrell claims that he was denied his right to confront and crossexamine the unidentified third officer (Dkt. 5, at 3; see Dkt. 1, at 18). The Confrontation
Clause does not allow admission of “testimonial statements” from a witness who does not
testify at trial unless the declarant is unavailable and the defendant has had a prior
opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59 (2004); see
United States v. Santos, 589 F.3d 759, 762 (5th Cir. 2009). Testimonial statements
include, for example, affidavits, depositions, prior testimony, or statements taken by
police officers during interrogation. Crawford, 541 U.S. at 51-52. A statement that is not
testimonial cannot violate the Confrontation Clause. Brown v. Epps, 686 F.3d 281, 286
(5th Cir. 2012); see Dorsey v. Stephens, 720 F.3d 309, 317 (5th Cir. 2013) (the
18 / 39
Confrontation Clause “applies only to statements offered to prove the truth of the matter
asserted”).
Terrell does not allege, and the record does not show, that the unidentified third
officer made a statement, wrote a report, or gave testimony regarding Terrell. Therefore,
the Confrontation Clause is inapplicable. See Brown, 686 F.3d at 286. Terrell fails to
show that the state habeas court’s denial of relief was unreasonable under § 2254.
C.
Due Process Claims
Terrell raises multiple due process claims, which the Court will address as
follows: first, Claims 3 and 7 regarding alleged suppression of evidence; second, Claims
4 and 14 regarding allegedly false testimony by Officer Mustafa; and third, Claims 11
and 12 alleging general due process violations.
1.
Suppression of evidence (Claims 3 and 7)
Petitioner raises two due process claims regarding suppression of evidence,
asserting that the prosecution suppressed the third officer’s identity and a video recording
from Mustafa’s police vehicle. The Due Process Clause requires the prosecution to
disclose evidence that is favorable to the defense and material to either guilt or
punishment. Brady v. Maryland, 373 U.S. 83 (1963). This duty to disclose “extends to
all evidence known not just to the prosecutors, but ‘to the others acting on the
government’s behalf in the case, including the police.’” Floyd, 894 F.3d at 161-62
(quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). Evidence is material under Brady
“where it simply demonstrates ‘a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.’” Id. at
19 / 39
166 (quoting Youngblood v. West Virginia, 547 U.S. 867, 870 (2006)). Impeachment
evidence “is favorable Brady evidence.” Id. at 163; see U.S. v. Bagley, 473 U.S. 667
(1985).
In Claim 3, Petitioner argues that prosecutors violated his due process rights when
they failed to disclose the identity of the third officer because the officer’s testimony was
“favorable” to Terrell (Dkt. 5, at 1). Terrell presents no factual support for his claim that
the officer’s testimony would have been “favorable” or “material” as required by Brady
and its progeny. Although he makes conclusory allegations that the third officer “was
necessary to raise an adequate defense” and that there was a “reasonable probability” of a
different result if he had testified, he provides no specific facts supporting his allegations
(Dkt. 1, at 12-13). Moreover, on state habeas review, the court credited counsels’
affidavits, which concluded that potential testimony from the third officer was neither
material nor favorable. See Dkt. 18-19, at 9 (trial counsel stated that his investigation had
not yielded evidence supporting Terrell’s theory and concluded that further investigation
into the issue of the third officer would have been “fruitless”); Dkt. 18-22, at 44
(appellate counsel concluded that the third officer “had no significant part in the event”
and that the issue of his presence “would have been of no benefit” to Terrell). Terrell
fails to show that the state habeas court’s denial of relief on this claim was unreasonable
under § 2254(d).
In Claim 7, Terrell claims that his due process rights were violated by the
prosecution’s “fail[ure] to agree” to the defense request for disclosure of video evidence
from Mustafa’s patrol vehicle (Dkt. 5, at 2). He presumably argues that the video would
20 / 39
have favored his defense. However, he provides no facts supporting a conclusion that the
video evidence in question actually exists.
Trial counsel stated in his state habeas
affidavit that he had no indication of video evidence:
In this case the State did not produce any in-car video in discovery, but it is
my customary practice to seek discovery of all materials in the possession
of the State, and it is the policy of the Galveston County Criminal District
Attorney to produce materials which might contain any exculpatory
materials. There was no indication in the material produced to me to
indicate that there was any in-car video, whether exculpatory or not. Also,
in the 56th District Court the Court enters an agreed discovery order in
which the State is ordered to allow the copying and examining of all
material evidence prior to trial, and I received no notice of any in-car video
or third officer.
(Dkt. 18-19, at 8). Appellate counsel also investigated and found no indication that a
video existed:
I investigated Appellant’s concern as to the possible existence of an “in
car” video, and found that there was no mention of an “in car” video in any
of the trial proceedings. I discussed the issue with trial counsel who advised
me that he had done an intensive investigation of the possibility of an “in
car” video, and did not find one. Moreover, the 56th Judicial District
promulgated a proscribed discovery order requiring the State to turn over to
the defense any video/recordings which might bear on the case, including
those which might be exculpatory to Appellant. None had been turned over.
I concluded that the trial attorney had investigated and determined that
there was no “in car” police video.
(Dkt. 18-22, at 43). The state habeas court credited these affidavits and denied relief. In
these proceedings, Terrell fails to present any facts supporting the existence of a video,
much less that any such video was material and favorable to his defense, as Brady
requires. See Floyd, 894 F.3d at 161. He also fails to demonstrate that the state habeas
court’s denial of relief was unreasonable under § 2254.
21 / 39
Habeas relief on Terrell’s due process claims regarding the suppression of
evidence is denied.
2.
Mustafa’s allegedly false testimony (Claims 4 and 14)
Petitioner raises two due process claims regarding Officer Mustafa’s testimony,
alleging that the prosecuted failed to correct false testimony from Mustafa and then
improperly vouched for his credibility during closing arguments.
The Due Process
Clause protects criminal defendants against prosecutorial misconduct.
See Greer v.
Miller, 483 U.S. 756, 765 (1987).
In Claim 4, Terrell alleges that prosecutors violated his due process rights when
they used and failed to correct Mustafa’s alleged falsehoods (Dkt. 5, at 2). Under Giglio
v. United States, 405 U.S. 150, 153-54 (1972), the prosecution’s “known solicitation
of false testimony” may constitute a violation of due process:
To establish a due process violation based on the State’s knowing use of
false or misleading evidence, a habeas petitioner must show (1) the
evidence was false, (2) the evidence was material, and (3) the prosecution
knew that the evidence was false. Evidence is false if, inter alia, it is
specific misleading evidence important to the prosecution’s case in chief.
False evidence is material only if there is any reasonable likelihood that it
could have affected the jury’s verdict.
Barrientes v. Johnson, 221 F.3d 741, 753 (5th Cir. 2000) (internal citations, quotation
marks, and alterations omitted). In this case, Terrell continues to advance arguments he
made in state court, including that Mustafa testified falsely that he had U-turned, rather
than traveling around the block, before detaining Terrell, and that it was physically
impossible for Mustafa to observe the transaction as Mustafa claimed (Dkt. 4, at 1-2).
Terrell’s arguments were rejected by the trial court at the suppression hearing, by the jury
22 / 39
at trial, and by the appellate court on direct appeal. 9 Moreover, the state habeas court
rejected the claim, based in part on the affidavits submitted by his former counsel stating
that the issue lacked merit.10
In these habeas proceedings, because Terrell presents no
facts supporting his claim that the prosecutors knew that Mustafa’s testimony was false,
among other required showings, he fails to demonstrate a due process violation. See
Barrientes, 221 F.3d at 753 (Giglio claim requires showing that prosecutors knowingly
used false or misleading evidence).
For essentially the same reasons, he fails to
demonstrate that the state habeas court’s denial of relief was contrary to or an
unreasonable application of clearly established federal law under § 2254(d).
In Claim 14, Terrell alleges that the prosecutor violated his due process rights
when he vouched for Mustafa’s credibility during closing arguments (Dkt. 5, at 3).
Terrell apparently faults the prosecutor for invoking Mustafa’s law enforcement record
when refuting Terrell’s theory that Mustafa had planted drugs on Terrell. See Dkt. 18-4,
at 118-19 (prosecutor argued to the jury in closing that the defense theory that Mustafa
planted the drugs was “just ridiculous” because a police officer with four to five years of
experience would not “risk his job just to wrongfully convict somebody” and, if Terrell’s
9
See e.g., Terrell, 2014 WL 50802, at *1 (appellate court determined that Mustafa
observed Terrell’s transaction with the white male and also observed Terrell throw something on
to the ground); id. (appellate court determined that Mustafa “made a U-turn to approach
Terrell”); id. (appellate court credited Mustafa’s testimony that, after backup arrived, Mustafa
found the bag with rocks that tested positive for crack cocaine).
10
See Dkt. 18-19, at 10 (trial counsel averred, “[Terrell] complains that the statements of
Officer Mustafa in the Affidavit For Warrant of Arrest and Complaint are obviously untrue,
false, and not to be accepted or believed, but all of the accounts of [Terrell] are the veritable
truth. However this was not that obvious to twelve jurors and the Judge”); Dkt. 18-22, at 43
(appellate counsel stated that he investigated and “determined that the issue relating to the arrest
warrant did not have merit”).
23 / 39
version of events were true, then Mustafa would have committed aggravated perjury on
the witness stand). Improper statements by a prosecutor at trial may violate due process
if they infect the trial with unfairness. Geiger v. Cain, 540 F.3d 303, 308 (5th Cir. 2008).
A petitioner must show “that the prosecutor’s misconduct was persistent and pronounced
or that the evidence of guilt was so insubstantial that the conviction would not have
occurred but for the improper remarks.” Id. (internal citation, quotation marks, and
alteration omitted); see Barrientes, 221 F.3d at 753 (“A trial is fundamentally unfair if
there is a reasonable probability that the verdict might have been different had the trial
been properly conducted”) (internal quotation marks and citations omitted). As above,
these claims were litigated by Terrell at pretrial proceedings, at trial, and on direct appeal,
and the state habeas court denied relief. Terrell makes no showing that the prosecutor’s
statements actually were improper, nor that such statements rendered his trial
fundamentally unfair. See Geiger, 540 F.3d at 307-08. He also fails to show that the
state habeas court’s denial of relief was unreasonable under § 2254(d).
3.
Contingent claims (Claims 11 and 12)
Petitioner raises two general due process claims that are contingent on other
claims in his petition. First, in Claim 11, he alleges that the cumulative constitutional
errors at his trial led to a “miscarriage of justice” and that no reasonable juror would have
found him guilty but for the prosecution’s errors (Dkt. 5, at 3). Second, in Claim 12, he
alleges without elaboration that he was denied “due process of law” under the Fourteenth
Amendment (id.).
24 / 39
Respondent’s briefing asserts that the claims are unexhausted but does not present
record support for the exhaustion argument. In any event, to the extent Terrell properly
exhausted these claims in state habeas (see Dkt. 18-21, at 52 (Claim 12)), they are wholly
contingent on Petitioner’s other due process and Sixth Amendment claims that, for the
reasons discussed above, lack merit. Therefore, these claims do not entitle Terrell to
habeas relief.
D.
Ineffective Assistance of Trial Counsel (Claim 5)
Petitioner alleges in Claim 5 that he was denied effective assistance of trial
counsel under the Sixth Amendment. Under Strickland v. Washington, 466 U.S. 668
(1984), a criminal defendant claiming ineffective assistance of counsel must show that
defense counsel rendered deficient performance and that the defendant was prejudiced:
To demonstrate deficient performance, the defendant must show that, in
light of the circumstances as they appeared at the time of the conduct,
“counsel’s representation fell below an objective standard of
reasonableness” as measured by “prevailing professional norms.” There is
a “strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” . . . .
To demonstrate prejudice under Strickland, [the defendant] must show that
counsel’s deficient performance was “so serious as to deprive him of a fair
trial, a trial whose result is reliable.” This requires the showing of a
reasonable probability that but for counsel’s deficiencies, the result of the
proceeding would have been different.
Rhoades v. Davis, 852 F.3d 422, 431-32 (5th Cir. 2017) (quoting Strickland, 466 U.S. at
687-89, 694). Strickland defines a “reasonable probability” as “a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This requires a
“substantial, not just conceivable, likelihood of a different result.” Pinholster, 563 U.S. at
25 / 39
189 (internal citation and quotation marks omitted). The petitioner’s burden to show a
“reasonable probability” of changed outcome is less than a preponderance:
The question is not whether the defendant would more likely than not have
received a different verdict . . . but whether in its absence he received a fair
trial, understood as a trial resulting in a verdict worthy of confidence.
Kyles, 514 U.S. at 434. The prejudice inquiry is focused on the “fairness of the trial and
the reliability of the . . . verdict in light of any errors made by counsel, and not solely the
outcome of the case.” White v. Thaler, 610 F.3d 890, 912 (5th Cir. 2010) (internal
citations and quotation marks omitted). Review of counsel’s performance is deferential,
and counsel enjoy a strong presumption that their conduct is within the “wide range” of
the bounds of professional norms. Strickland, 466 U.S. at 689. Any “strategic decisions”
made by trial counsel “must be given a strong degree of deference.” Rhoades, 852 F.3d
at 432.
On habeas review, when a state court has adjudicated a claim of ineffective
assistance of counsel on the merits, the petitioner bears an especially heavy burden. The
question is not whether the state court’s application of Strickland was incorrect, but rather
whether it was unreasonable.
The standards created by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is doubly so. The
Strickland standard is a general one, so the range of reasonable applications
is substantial. Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under
§ 2254(d). When § 2254(d) applies, the question is not whether counsel’s
actions were reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.
26 / 39
Richter, 562 U.S. at 105 (internal citations and quotation marks omitted). See Trottie v.
Stephens, 720 F.3d 231, 240-41 (5th Cir. 2013) (“‘even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable’” (quoting Richter, 562 U.S.
at 102)).
In these proceedings, Petitioner raises eight claims regarding trial counsel, many
of which overlap with the claims discussed above: (a) trial counsel failed to litigate
Fourth Amendment issues; (b) trial counsel failed to impeach Officer Mustafa with a
prior inconsistent statement, namely, his arrest warrant affidavit; (c) trial counsel failed to
object to the prosecution’s presentation of Mustafa’s allegedly false testimony; (d) trial
counsel failed to investigate the identity of the unidentified third officer; (e) trial counsel
failed to present evidence in support of Terrell’s motion to suppress; (f) trial counsel
failed to file a motion for continuance; (g) trial counsel failed to object to an erroneous
jury instruction; and (h) trial counsel failed to object to the prosecutor’s closing argument
regarding Officer Mustafa’s credibility (Dkt. 5, at 2).
1.
Litigation of Fourth Amendment issues (Claim 5(a))
Terrell claims that his trial counsel was ineffective because he failed to litigate the
Fourth Amendment claims related to Mustafa’s arrest warrant affidavit and the magistrate
proceedings (Dkt. 5, at 2; see Dkt. 31, at 26).11 However, the state court record in this
case defeats Terrell’s claim. In pretrial proceedings, trial counsel filed a motion to
11
This claim, which involves the same facts as the Fourth Amendment claims in Claims 1
and 2, may be raised as an ineffective assistance of counsel claim. See Moreno, 450 F.3d at 168
n.6 (“Stone v. Powell does not bar an ineffective assistance of counsel claim on habeas review
based on an attorney’s failure to adequately litigate a Fourth Amendment claim”).
27 / 39
suppress raising Fourth Amendment issues (Dkt. 17-18, at 41-43).
Counsel also
represented Terrell at the suppression hearing, at which he litigated issues from Terrell’s
pro se motion to suppress.12 At trial, Terrell’s counsel presented the jury with Terrell’s
allegations regarding Mustafa’s allegedly false statements in the arrest affidavit, the
absence of probable cause for the arrest, and other Fourth Amendment issues. See Dkt.
18-4, at 91-102 (Terrell testified to his version of events, against advice of counsel). The
record provides no support for Terrell’s claim that his counsel failed to litigate Fourth
Amendment issues. To the extent Terrell argues that counsel’s litigation of the issue was
inadequate, he fails to identify any specific failure or deficiency by counsel. The fact that
the trial court and jury decided adversely to Terrell is insufficient to support a Strickland
claim. See Strickland, 466 U.S. at 689 (the “distorting effects of hindsight” must be
eliminated on habeas review because “it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable”).
In state habeas proceedings, trial counsel’s affidavit stated that the Fourth
Amendment issues regarding the magistrate and arrest warrant had been litigated and
lacked merit (Dkt. 18-19, at 9-10). Appellate counsel also opined that issues lacked merit
and had been diligently presented by trial counsel (Dkt. 18-22, at 43-44). The state
habeas court determined that Terrell had not shown that his trial counsel was ineffective
12
Counsel cross-examined Mustafa on many of the issues raised in the pro se motion,
including whether Mustafa could have observed the transaction given the distance and lighting,
whether Mustafa had U-turned or driven around the block between observing the transaction and
detaining Terrell, and the role of the third officer who arrived late to the scene. See Dkt. 18-1, at
26-28, 34-35).
28 / 39
and that “the outcome of the proceedings wouldn’t have been different but for counsels’
alleged errors,” finding counsels’ affidavits on the issue to be “correct and credible” (Dkt.
18-19, at 26-27). In these federal habeas proceedings, Terrell alleges no specific facts
that demonstrate that trial counsel’s litigation of Fourth Amendment issues fell below an
“objective standard of reasonableness,” nor that he was prejudiced by any deficient
performance by counsel. See Rhoades, 852 F.3d at 431-32. Terrell therefore fails to
meet his burden to show that the state habeas court’s denial of relief was unreasonable
under § 2254.
2.
Impeachment of Mustafa (Claim 5(b))
Terrell claims that his trial counsel was ineffective because counsel failed to
impeach Officer Mustafa with an allegedly inconsistent prior statement, namely, the
arrest warrant affidavit. He does not provide factual support for the claim in his amended
petition (Dkt. 5, at 2), but apparently relies on his allegations that Mustafa could not have
observed the events as he claimed given his location at the time of the transaction and the
route he travelled before detaining Terrell (Dkt. 4, at 1-2; Dkt. 31, at 26-27). He alleges
that trial counsel’s decision not to impeach Mustafa based these discrepancies was not a
“reasonable strategic decision” under Strickland and that he was prejudiced because, had
counsel objected to Mustafa’s allegedly false testimony, the trial court would have
excluded Mustafa’s testimony (id.).
As above, the state court record refutes the factual basis of Terrell’s claim. In
fact, trial counsel cross-examined Mustafa on the alleged falsehoods identified by
29 / 39
Terrell.13
Terrell thus fails to show that trial counsel’s performance fell below an
objective standard of reasonableness or that he was prejudiced by the performance.
Terrell also fails to demonstrate that the state habeas court’s determination, which denied
relief on Terrell’s ineffective assistance claim and on his other claims based on the
alleged falsity of Mustafa’s testimony, was unreasonable under § 2254(d).
3.
Objection to Mustafa’s testimony (Claim 5(c))
Terrell claims that his trial counsel was constitutionally ineffective because he
failed to object to prosecutorial misconduct, in particular, the prosecutor’s presentation of
Mustafa’s testimony. Like multiple other claims in this petition, this claim is based on
Terrell’s allegation that Mustafa’s arrest warrant affidavit contained false statements
about the events leading up to his arrest. Terrell claims that he informed the trial court in
pretrial proceedings about the falsehoods, but that the State nevertheless presented
Mustafa’s testimony. He claims that trial counsel’s failure to object to the testimony was
unreasonable and was not strategic under Strickland (Dkt. 31, at 27-28).14
As stated above regarding Claim 4, Petitioner has made no showing that the
prosecution at his trial presented false testimony and, in fact, and the state courts rejected
all of Terrell’s claims based on the alleged falsity of Mustafa’s statements. Given that the
13
See Dkt. 18-4, at 42-53 (trial counsel questioned Mustafa regarding Mustafa’s location
during the arrest and the distance from the place where Terrell made an exchange with the white
man, the lighting in the area, the direction Mustafa’s patrol car was facing when he observed the
exchange, the route Mustafa drove to reach Terrell, and where Mustafa detained Terrell, among
other topics).
14
Respondent argues that Terrell failed to exhaust this claim on state habeas review and
Terrell disputes the issue, claiming that he presented the issue to the Texas Court of Criminal
Appeals in his state habeas memorandum (see Dkt. 31, at 27). The Court does not address the
exhaustion issue because, even if Terrell properly exhausted this claim, it clearly lacks merit.
30 / 39
underlying issue lacked merit, Terrell has failed to demonstrate that trial counsel’s
performance was deficient and, moreover, fails to demonstrate prejudice under
Strickland. To the extent Terrell argues that his counsel was ineffective merely because
the trial court did not rule in Terrell’s favor on the suppression motion, or because the
jury found Terrell guilty despite counsel’s arguments, his claim lacks merit.
See
Strickland, 466 U.S. at 689.
Petitioner has failed to show in these federal proceedings that the state habeas
court’s denial of habeas relief was unreasonable under § 2254.
4.
Investigation of unidentified third officer (Claim 5(d))
Terrell claims that, although he informed trial counsel of the unidentified third
officer on the scene of Terrell’s arrest and the need to investigate his identity, trial
counsel failed to conduct an investigation (Dkt. 31, at 28-30). As held in Strickland,
“counsel has a duty to make reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.”
Strickland, 466 U.S. at 691; see
Newbury v. Stephens, 756 F.3d 850, 873 (5th Cir. 2014); Ransom v. Johnson, 126 F.3d
716, 723 (5th Cir. 1997). “In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.”
Strickland, 466 U.S. at 691.
The reasonableness of counsel’s investigation decisions “can be assessed by taking into
account the defendant’s own statements, actions, and information supplied by the
defendant; whether counsel has reason to believe that pursuing certain investigations
would be fruitless or even harmful; resource constraints; and whether the information that
31 / 39
might be discovered would be of only collateral significance.” Hoffman v. Cain, 752
F.3d 430, 440 (5th Cir. 2014) (internal quotation marks, citations, and footnotes omitted).
To establish prejudice for failure to investigate, “a petitioner must allege with specificity
what the investigation would have revealed and how it would have changed the outcome
of the trial.” Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005); see Woodfox v. Cain,
609 F.3d 774, 808 (5th Cir. 2010).
In these proceedings, Terrell provides no specific facts demonstrating that the third
officer’s presence at trial would have benefited his defense or supported his theory that
the third officer planted evidence against him (see Dkt. 31, at 28-30).
He therefore fails
to show “what the investigation would have revealed” or “how it would have changed the
outcome of the trial.” See Miller, 420 F.3d at 361. Although he asserts that further
investigation into the third officer’s identity would have yielded favorable information
that the officer planted evidence against him, the state habeas court rejected this claim,
instead crediting counsels’ affidavits which reached the opposite conclusion. See Dkt.
18-19, at 9 (trial counsel investigated and satisfied himself that further investigation into
the unidentified third officer would have been “fruitless”); Dkt. 18-22, at 44 (appellate
counsel concluded that “[t]here was no evidence that the third officer took any other part
in the matter”). Terrell fails to demonstrate that the state habeas court’s denial of relief
on this claim was unreasonable under § 2254.
5.
Presentation of evidence supporting suppression (Claim 5(e))
Terrell claims that trial counsel failed to present evidence in support of his motion
to suppress and, in particular, his argument that Mustafa made false statements (Dkt. 5, at
32 / 39
2; see Dkt. 31, at 31-32 (alleging that Mustafa’s affidavit “contained known falsehoods”
and that a “falsity challenge” should not be limited to the “4 corners of the warrant
affidavit”)). He states that dispatch records, patrol vehicle logs, and patrol vehicle video
recordings “would have been good evidence to introduce at the suppression hearing and
trial” (id. at 32). Terrell does not specify what the additional evidence would have shown
or otherwise make a showing of prejudice. See Rhoades, 852 F.3d at 432; Miller, 420
F.3d at 361. To the extent he faults trial counsel for failure to investigate these records,
he fails to show that trial counsel’s investigative decisions were unreasonable under the
circumstances. See Strickland, 466 U.S. at 691.
Petitioner fails to show deficient performance or prejudice under Strickland and
fails to demonstrate that the state habeas court’s denial of relief on this claim was
unreasonable.
6.
Motion for continuance (Claim 5(f))
Terrell argues that trial counsel was ineffective because he failed to file a motion
for continuance. In response to Respondent’s briefing stating that Terrell had failed to
allege any grounds for such a motion or when trial counsel should have filed it (Dkt. 16,
at 28-29), Terrell explains that trial counsel’s “numerous cancelled suppression hearings
until the trial was the next working day was not strategic” and that trial counsel “took
four (4) months [after Terrell’s pro se suppression motion was filed] to finally have a
[suppression] hearing” (Dkt. 31, at 31).
Based on the statements in Terrell’s response, he apparently bases this claim on
the fact that the trial court reset the suppression hearing several times before holding it on
33 / 39
March 23, 2012. Terrell points to no evidence that trial counsel was responsible for, or
requested, the re-settings and, more fundamentally, has not alleged any prejudice from
the four-month delay about which he complains.
The trial court held a pretrial
suppression hearing and heard all of Petitioner’s arguments, including those in his pro se
motion to suppress.
Petitioner fails to show that the re-settings of his suppression hearing were the
result of trial counsel’s deficient performance or that he was prejudiced under Strickland,
and fails to demonstrate that the state habeas court’s denial of relief was unreasonable.
7.
Objection to jury instruction (Claim 5(g))
Terrell alleges that trial counsel failed to object to an erroneous jury instruction,
but does not identify the instruction at issue (Dkt. 5, at 2). His response (Dkt. 31) does
not address Claim 5(g).15 Terrell’s cursory allegation regarding an unidentified, allegedly
erroneous jury instruction fails to demonstrate that trial counsel rendered deficient
performance or that he was prejudiced under Strickland. He also fails to demonstrate that
the state habeas court’s determination denying relief under Strickland was unreasonable.
8.
Objection to closing argument (Claim 5(h))
Terrell alleges that trial counsel was constitutionally ineffective because he failed
15
Petitioner’s response states that he was not “able to adequately finish” his response “due
to the interference of the Respondent’s subordinates throwing away the petitioner’s court
documents” in a separate case, Civil Action No. 9:17-CV-132 (Dkt. 31, at 32). He provides no
further explanation as to how his response purportedly was impeded and has filed no additional
argument since filing the response on September 7, 2018.
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to object to the prosecutor’s improper closing argument (Dkt. 5, at 2).16 He does not
identify the allegedly improper argument in his amended petition, and his response (Dkt.
31) does not address the issue. To the extent Terrell’s claim relies on the same facts as
his due process claim regarding the prosecutor’s closing argument vouching for
Mustafa’s credibility, he fails to identify a meritorious objection that trial counsel failed
to make and therefore fails to show deficient performance or prejudice under Strickland.
He also fails to demonstrate that the state habeas court’s denial of relief was unreasonable
under § 2254.
E.
Ineffective Assistance of Appellate Counsel (Claims 6 and 8)
Terrell raises two claims of ineffective assistance of appellate counsel. A criminal
defendant is entitled to effective assistance of counsel on direct appeal. Evitts v. Lucey,
469 U.S. 387 (1985); Dorsey, 720 F.3d at 319-21.
Claims of ineffective assistance of
counsel on appeal are governed by Strickland standards, which require a petitioner to
show that counsel’s performance was deficient and that the petitioner was prejudiced. Id.
at 319 (citing Strickland, 466 U.S. at 687).
As with Strickland claims regarding trial
counsel, the court’s review is “highly deferential,” and “doubly deferential” on habeas
review. Id. A habeas petitioner must overcome “a strong presumption that counsel’s
conduct falls within the range of reasonable professional assistance.”
Higgins v. Cain,
720 F.3d 255, 265 (5th Cir. 2013) (internal quotation marks and citation omitted).
16
Respondent argues that Terrell failed to exhaust this issue on state habeas review. The
Court need not address the exhaustion issue because, even if the Court were to assume that
Terrell properly exhausted this claim, it clearly lacks merit.
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Appellate counsel is not required to “raise every nonfrivolous ground of appeal
available.” Dorsey, 720 F.3d at 320 (internal citation and quotation marks omitted).
“[A]ppellate counsel who files a merits brief need not (and should not) raise every
nonfrivolous claim, but rather may select from among them in order to maximize the
likelihood of success on appeal.” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citing
Jones v. Barnes, 463 U.S. 745 (1983)). Effective advocates “‘winnow[] out weaker
arguments on appeal’” and focus on key issues. Higgins, 720 F.3d at 265 n.41 (quoting
Jones, 463 U.S. at 751-52).
In these proceedings, Terrell alleges in Claim 6 that his first appellate attorney,
Calvin Parks, rendered ineffective assistance when he “filed a frivolous Anders brief after
being on the appeal ten months” (Dkt. 5, at 2).17 However, when removing Parks, the
trial court immediately appointed substitute appellate counsel (Dkt. 17-19, at 10).
Terrell’s new appellate counsel filed a merits brief raising two issues, which received full
consideration from the appellate court. Therefore, to the extent Parks’ performance was
deficient, Terrell fails to make the required showing of prejudice. See Dorsey, 720 F.3d
at 319.
He also fails to show that the state habeas court’s denial of relief was
unreasonable under § 2254.
In Claim 8, Terrell alleges that his second appellate attorney filed a “frivolous
appellate brief” on the merits of his claims (Dkt. 5, at 2). In his superseded petition, he
17
See Dkt. 17-19, at 10 (trial court finds good cause to remove Parks because he filed only
an Anders brief) An Anders brief, which typically accompanies an attorney’s motion to
withdraw from representation, represents to the court that the appeal lacks an issue of arguable
merit. See Anders v. Calif., 386 U.S. 738 (1967); U.S. v. Flores, 632 F.3d 229, 231 (5th Cir.
2011).
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alleged specifically that counsel failed to raise all issues requested by Terrell, including
issues regarding the police vehicle’s video, the presence of an unidentified third officer,
and alleged falsehoods in the arrest warrant affidavit (Dkt. 1, at 16-17). Counsel’s
affidavit addressing Terrell’s claims explained his method for handling an appeal and
stated that, in reviewing Terrell’s case, he initially spotted twelve potential issues,
including issues raised in Terrell’s state habeas application (Dkt. 18-22, at 43). He then
narrowed the potential issues from twelve to two (id. at 44). He concluded that Terrell’s
claims regarding the arrest warrant affidavit and magistrate proceedings lacked merit;
that the police video referenced by Terrell did not exist; that the presence of an
unidentified third officer was not significant in Terrell’s arrest and did not present a
meritorious issue for appeal; and that trial counsel’s investigation and litigation of the
issues were not constitutionally ineffective (id. at 43-44).
The state habeas court credited counsel’s affidavit when rejecting the claim of
ineffectiveness. See Dkt. 18-19, at 26-27 (finding that “the outcome of the proceedings
wouldn’t have been different but for counsels’ alleged errors”). An appellate attorney’s
decision not to raise all available claims on appeal, without more, is insufficient for
habeas relief. See Dorsey, 720 F.3d at 319. Terrell’s cursory arguments in this Court fail
to demonstrate that appellate counsel rendered deficient performance or prejudiced him
when he selected the issues for appeal. They also fail to demonstrate that the state habeas
court’s denial of relief was unreasonable under § 2254.
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IV.
CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when entering a final order that
is adverse to the petitioner.
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “‘that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under
the controlling standard, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (internal citation and quotation marks
omitted). Where denial of relief is based on procedural grounds, the petitioner must show
not only that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the record and the applicable law, the Court concludes
38 / 39
that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not allege facts showing that his claims could be resolved in a
different manner, a certificate of appealability will not issue in this case.
V.
CONCLUSION
For the reasons stated above the Court ORDERS that:
1.
The petition for a writ of habeas corpus filed by Sheron Gabriel Terrell is
DENIED.
2.
All pending motions, if any, are DENIED as moot.
3.
A certificate of appealability is DENIED.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 1st day of July, 2019.
___________________________________
George C. Hanks Jr.
United States District Judge
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