Green v. Stephens

• Decision Date: 25 February 2015
• Docket Number: CIVIL ACTION NO. H-14-1017
• Parties: CLARENCE BERNARD GREEN, (TDCJ-CID #1644750) Petitioner, v. WILLIAM STEPHENS, Respondent.
• Court: U.S. District Court — Southern District of Texas

CLARENCE BERNARD GREEN, (TDCJ-CID #1644750) Petitioner, v. WILLIAM STEPHENS, Respondent.

CIVIL ACTION NO. H-14-1017

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

February 25, 2015

MEMORANDUM AND OPINION

The petitioner, Clarence Bernard Green, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a 2010 state felony conviction for aggravated robbery. The respondent filed a motion for summary judgment, (Docket Entry No. 11), with a copy of the state court record. Green filed a response. (Docket Entry No. 13). Based on careful consideration of the pleadings, the motion and response, the record, and the applicable law, this court grants the respondent's motion and, by separate order, enters final judgment. The reasons are set out below.

I. Background

A jury found Green guilty of the felony offense of aggravated robbery. (Cause Number 113776). On May 12, 2010, the jury sentenced Green a 99-year prison term. The Fourteenth Court of Appeals of Texas affirmed Green's conviction on July 12, 2012. Green v. State, No. 14-10-00438-CR, 2012 WL 2783862 (Tex. App. - Houston [14th Dist] 2012, no pet.) (not designated for publication). The Texas Court of Criminal Appeals refused Green's petition for discretionary review on September 12, 2012. Green filed an application for state habeas corpus relief on September 30, 2013, which the Texas Court of Criminal Appeals denied on February 26, 2014,without written order, on the trial court's findings, without a hearing. Ex parte Green, Application No. 80, 911-01 at cover.

On April 14, 2014, this court received Green's federal petition. Green contends that his conviction is void for the following reasons:

(1) the evidence was insufficient to support the conviction because the complainant's uncertain identification did not corroborate the accomplice's testimony;

(2) the pretrial identification was unnecessarily suggestive because the police officer told the complainant to pick the closest man she saw in the video, and she used her son as an interpreter during the live proceedings;

(3) trial counsel, Michael Fosher, rendered ineffective assistance by failing to object to false and perjured testimony about a bandana worn during the robbery; and

(4) the prosecutor engaged in misconduct by:

(A) knowingly using false and perjured testimony about a bandana worn during the robbery and including this in the State's opening; and

(B) failing to disclose that identity person who provided the Crime Stopper's tip was Ashley Hudson, the accomplice witness.

(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 6-8).

The claims are analyzed under the applicable law.

II. The Applicable Legal Standards

Green's petition for writ of habeas corpus is reviewed under the federal habeas statutes as amended by the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254. The AEDPA provides as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

Subsections 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 of mixed questions of law and fact is reviewed under 28 U.S.C. § 2254(d)(1). The state-court determination 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 "statecourt 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: (1) it unreasonably applies the correct legal rule to the facts of a particular case; or (2) 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. The issue is whether the application was "objectively unreasonable." Id. at 1495; Penry v. Johnson, 215 F.3d 504, 508 (5th Cir. 2000). The state court's factual findings are "presumed to be correct . . . and [receive] deference . . . unless . . . 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)).

Pure fact questions are governed by § 2254(d)(2). Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A state court's factual findings are entitled to deference on federal habeas corpus review and are presumed correct under 28 U.S.C. § 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 the state court's express fact findings but also to implicit findings. 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 requires that a statecourt's fact findings are "presumed to be correct" - overrides the ordinary rule that, in a summary judgment proceeding, disputed facts are construed in the light most favorable to the nonmoving party. Unless the petitioner can "rebut[ ] the presumption of correctness by clear and convincing evidence," the state court's fact findings must be accepted as correct. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).

Green is a pro se petitioner. Pro se habeas petitions are construed liberally and are not held to the same stringent and rigorous standards as pleadings lawyers file. 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 Green's state and federal habeas petitions. Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir. 1999).

III. Factual Background

The Fourteenth Court of Appeals summarized the trial testimony, as follows:

Myong Soon Lee owns and operates a beauty supply store in southwest Houston. On February 19, 2008, Lee was behind the register when two individuals, one male and one female, came into the store pointing guns and yelling "get down." Both robbers were wearing "hoodies" (hooded sweatshirts) and had their faces covered. The woman, who wore a gray hoodie and a bandanna over her face, ordered Lee's employees to a back room while the man, who wore a black hooded jacket and had his face covered with a stocking mask, held a gun to Lee's head and demanded all the money in the register. Lee gave the man all the cash she had, about $6OO-$7OO in total. After the robbers left, Lee activated an alarm in her store that contacts the police in the event of a hold-up, and Officer Bob Conley of the Houston Police Department responded to the scene. According to Officer Conley, Lee described the female as black but gave virtually no description of the male except that he was wearing a hoodie around his face. The description Officer Conley recorded read "[u]nknown male, unknown age, didn't really give a height or weight." None of Lee's employees were able to give any further description of the male robber. The store has 16 security cameras,one of which captured images of two people approaching the store through an adjacent alley moments before the robbery. One of the people, who appears to be female, is shown wearing jeans and a gray hoodie and is depicted looking down, with her face not visible. The other, who is identifíably male, is shown wearing what appears to be a green hooded jacket over a black shirt or hoodie. The male's face is visible at a distance. Seconds later, internal cameras recorded the same woman, her face covered with a bandanna, pointing a gun at store employees and forcing them to the back of the store, while the register camera recorded a man wearing a black hooded coat holding a gun to Lee as she took cash from the register. In this recording, the man is looking down and his face is not visible.

About two months after the

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