Stewart v. Davis

• Decision Date: 20 December 2017
• Docket Number: CIVIL ACTION NO. H-17-0264
• Parties: COREY STEWART, TDCJ #1717765, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

COREY STEWART, TDCJ #1717765, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

CIVIL ACTION NO. H-17-0264

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

December 20, 2017

MEMORANDUM OPINION AND ORDER

Texas inmate Corey Stewart has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1), seeking relief under 28 U.S.C. § 2254 from a state court capital murder conviction that resulted in a sentence of life without parole. Pending before the court is Respondent Lorie Davis's Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 26). Stewart has filed Petitioner's Traverse to Respondent's Return and Answer Pursuant to 28 U.S.C. § 2254(e)(1), and Rule 5(e) ("Petitioner's Traverse") (Docket Entry No. 37), along with a Motion for Expansion of Record (Docket Entry No. 35) and a Motion for Appointment of Counsel if the court orders an evidentiary hearing (Docket Entry No. 36). After considering all of the pleadings, the state court records, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below.

I. Background

In Brazos County cause number 10-02913-CRF-361, Stewart was charged with capital murder in connection with the death of Johannes Kinny,¹ who was shot and killed early in the morning of April 2, 2010, during the course of a robbery at an Exxon convenience store in College Station, Texas, where Kinny worked as an overnight cashier.² Security camera footage showed that Kinny was shot in the chest during a confrontation with Stewart's accomplice, Joshua Evans.³ Stewart, who was armed with a knife,⁴ struck Kinny several times during that altercation.⁵ Stewart and Evans then went behind the counter and took the store's cash drawer.⁶ Although Kinny sustained at least two stab wounds to his back, he died as a result of the gunshot wound inflicted by Evans.⁷

Law enforcement set up a mobile command center at the Exxon station to coordinate reports from the investigating officers andto disseminate information that was being collected by detectives.⁸ As the investigation commenced on April 2, 2010, police received information about another violent robbery that had occurred recently at another Exxon station in nearby Bryan, Texas, which they believed could be related.⁹ In addition, two local residents (Jessica Greeno and Devoris Harris) came forward and identified one of the perpetrators shown in the security footage as one of three men who had robbed them at gunpoint the previous week on March 27, 2010.¹⁰ Greeno told Detective Michael Lohse that thirty minutes before arriving at their interview she had seen the man who was armed with the gun during that robbery (later identified as Stewart) and that he was driving a white and blue Lincoln bearing the Texas license plate number HCK 814.¹¹

Police recovered the stolen cash drawer from a dumpster in front of an apartment building that was within walking distance from the College Station Exxon where Kinny was killed.¹² Police noted that a white and blue Lincoln had been seen parked next to the dumpster where the stolen cash drawer was found.¹³ The Lincolnhad license plate number HCK 841, which nearly matched the number provided by Greeno.¹⁴ Police who were canvassing the area had encountered Stewart in front of the apartment complex where Stewart was living with his girlfriend.¹⁵ Stewart was questioned by Detective Danny Junek, who noted that Stewart had the same build as one of the suspects depicted in the security footage of the offense.¹⁶ Junek became even more suspicious after it was later reported that Stewart was seen leaving the apartment complex in the Lincoln along with another male who met the description of the other suspect.¹⁷ Based on this information the detective who was in charge of the investigation at the command center (Sergeant Woodward) put out a BOLO (be on the look out) for the Lincoln, with instructions to find a way to stop the vehicle and detain the occupants for questioning in connection with the robbery and murder that had occurred earlier that day.¹⁸

Officer Ian Mader, who had been with the College Station Police Department for less than a year, watched the surveillance footage of the robbery at the start of his shift on the afternoon of April 2, 2010, and heard the BOLO while he was out on patrol.¹⁹Officer Mader located the Lincoln and reported it to a dispatch officer who told Mader to try and make a stop for probable cause based on a traffic violation, rather than making a "suspicious person stop."²⁰ While coordinating with other officers, Mader stopped the vehicle and detained all three occupants after he observed that the driver (Stewart) failed to signal the required distance before making a turn.²¹ Although Stewart had signaled his intent to turn, Mader did not believe that the signal had been made more than 100 feet from the turn, which is a traffic violation under Texas law.²² Stewart was detained for the traffic violation, for failing to have a driver's license, and for being in possession of marijuana.²³

Officers identified Joshua Evans and his cousin, Jeremy Evans, as the passengers in the Lincoln that Stewart was driving when it was stopped by Officer Mader.²⁴ Greeno and Harris viewed photographic lineups and identified Stewart, Joshua Evans, and Jeremy Evans as the men who robbed them on March 27, 2010.²⁵

Detective Travis Lacox arrived at the scene of the traffic stop and questioned Stewart as he sat hand-cuffed in the back of apatrol car.²⁶ After Lacox read Stewart his Miranda warnings, he showed Stewart surveillance photos from the robbery that occurred at the Exxon station in Bryan, and Stewart admitted taking part in that offense.²⁷

Stewart was given Miranda warnings again several days after his arrest and gave a recorded statement admitting his role in the robbery of the Exxon in College Station, during which Johannes Kinny was killed.²⁸ Items taken from Greeno and Harris were recovered from a search of the Lincoln, which was impounded after Stewart's arrest.²⁹ A knife and the gun used to kill Kinny were recovered during a search of Stewart's apartment.³⁰

Stewart's defense counsel filed motions to suppress his statements to police and the evidence seized as the result of his arrest, arguing that the traffic stop was invalid.³¹ Testimony at the suppression hearing disclosed that Stewart had not, in fact, committed a traffic violation because he did signal his intent toturn within the required distance.³² After hearing testimony about how police had identified Stewart as a suspect before the traffic stop was made and the BOLO that had issued for the Lincoln, the trial court denied the motions to suppress.³³

On June 17, 2011, a jury in the 361st District Court of Brazos County found Stewart guilty as charged of capital murder.³⁴ Because the State did not seek the death penalty, the trial court automatically imposed a sentence of life imprisonment without the possibility of parole pursuant to Texas Penal Code § 12.31(a)(2).³⁵

On direct appeal Stewart argued that the trial court abused its discretion by (1) denying his motion to suppress evidence on the grounds that police conducted an improper traffic stop; (2) denying his motion to suppress statements because there was no express waiver of his rights; and (3) admitting exhibits presented during the trial of his accomplice (Evans) without proper authentication.³⁶ Stewart also argued that there was insufficientevidence to show that he intended to cause the victim's death.³⁷ An intermediate court of appeals rejected all of Stewart's arguments and affirmed the conviction in an unpublished opinion, which summarized the pretrial proceedings and the evidence presented at trial. See Stewart v. State, No. 10-11-00291-CR, 2013 WL 3969824 (Tex. App. - Waco, Aug. 1, 2013). The Texas Court of Criminal Appeals summarily refused his petition for discretionary review. See Stewart v. State, PD-1183-13 (Tex. Crim. App. Jan. 15, 2014).

Stewart then challenged his conviction by seeking state habeas corpus review under Article 11.07 of the Texas Code of Criminal Procedure.³⁸ The state habeas corpus court, which also presided over the trial and pretrial proceedings, recommended that relief be denied after making detailed findings of fact and conclusions of law.³⁹ The Texas Court of Criminal Appeals agreed and denied relief without a written order based on the findings and conclusions made by the trial court.⁴⁰

Stewart now seeks a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge his capital murder conviction. According to the Petition and Memorandum Brief in Support of Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Memorandum Brief"), Docket Entry No. 2, Stewart raises the following claims for relief:

1. During the suppression hearing, he was denied the right to confront and cross-examine witnesses who identified him (Greeno and Harris).

2. His conviction was obtained with evidence seized during an unlawful search, therefore, he is actually innocent.

3. The trial court erred by denying his motions to suppress without a valid reason.

4. The evidence was insufficient to support his conviction for capital murder.

5. The prosecutor engaged in misconduct by presenting evidence during the suppression hearing of an unadjudicated extraneous offense, namely, the robbery of Greeno and Harris; and the trial court abused its discretion by admitting this evidence without affording him the opportunity to confront and cross-examine the witnesses against him.

6. He was denied effective assistance of counsel during his pretrial and trial proceedings.

7. He was denied effective assistance of counsel on appeal.

8. The state courts erred by holding that his unlawful stop and detention was reasonable.⁴¹

The respondent moves for summary...