Sturgeon v. Quarterman, Civil Action No. H-07-0134.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Citation615 F.Supp.2d 546
Docket NumberCivil Action No. H-07-0134.
PartiesRichard Glen STURGEON, TDCJ # 880922, Petitioner, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice—Correctional Institutions Division, Respondent.
Decision Date12 May 2009
615 F.Supp.2d 546
Richard Glen STURGEON, TDCJ # 880922, Petitioner,
Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice—Correctional Institutions Division, Respondent.
Civil Action No. H-07-0134.
United States District Court, S.D. Texas, Houston Division.
May 12, 2009.

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Brent Evan Newton, Assistant Federal Public Defender, Philip G. Gallagher, Office of the Fed. Pub. Def., Houston, TX, for Petitioner.

Sallie Christian-Carnal, Carole S. Callaghan, Office of the Attorney General, Joseph P. Corcoran, Postconviction Litigation Div. Office of the Attorney General of Texas, Austin, TX, for Respondent.


NANCY F. ATLAS, District Judge.

State inmate Richard Glen Sturgeon (TDCJ # 880922) has filed a petition under 28 U.S.C. § 2254, seeking a federal writ of habeas corpus to challenge a state court conviction for aggravated robbery. With the assistance of appointed counsel, Sturgeon has filed an amended version of his petition. (Doc. # 56). Pending before the Court is the respondent's second motion for summary judgment. (Doc. # 59). Sturgeon has filed a reply. (Doc. # 63). After considering all of the pleadings, the state court records, and the applicable law, the Court denies the respondent's motion for summary judgment and grants the amended petition for a writ of habeas corpus for reasons that follow.


Sturgeon is presently in custody of the Texas Department of Criminal Justice— Correctional Institutions Division (collectively, "TDCJ") as the result of a judgment of conviction in state court cause number 812784. A Harris County grand jury returned an indictment against Sturgeon in that case, charging him with aggravated robbery with a deadly weapon, namely, a firearm. The State enhanced that indictment for purposes of punishment with allegations that Sturgeon had at least two prior felony convictions, one for burglary of a motor vehicle and the other for unlawful possession of a firearm by a felon. Sturgeon's state court proceedings, which featured two trials, two appeals, and several frustrated attempts at state habeas corpus review, are summarized below.

A. Sturgeon's First Trial

The aggravated robbery charges against Sturgeon were tried initially in June of 1999, before a jury in the 182nd District Court of Harris County, Texas. The complaining witness, Minh Nguy, testified that he was robbed at gun point by two black men on December 25, 1998, in the driveway

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of his Sharpstown-area home on Houston's southwest side. Nguy, who is an American citizen from Saigon, speaks limited English and testified with the aid of a Vietnamese interpreter. Nguy explained that, at approximately 1:00 a.m., he arrived home after his shift as a cook at a restaurant owned by a family member. Nguy stated that two men armed with pistols got out of a nearby parked car and approached him as he sat in his car in the driveway of his home. Nguy testified that the first man was tall and the second man was short. Nguy thought that a third man may have remained behind in the parked car, but he was not sure.

According to Nguy, the tall man slowly approached him, pulled him from his car, and pistol-whipped him by striking him repeatedly in the face. Although it was the middle of the night, Nguy insisted that he had a good opportunity to see his attacker. The second armed man, who Nguy admittedly could not see well, struck him from behind and pushed him to the ground. The robbers took Nguy's wallet, money, and car keys. One of the robbers then drove off in Nguy's Ford LTD, while the other man left in a separate car.

As a result of the attack, Nguy sustained injuries to his face, including a cut over his left eye and a missing tooth. Nguy told the officer who responded to the robbery call (Officer Powell) that his primary assailant, the one who pistol-whipped him in the face, was wearing a long black coat with a hat or hood and that he had a facial hair on his chin (a "goatee"). Nguy described his primary assailant as approximately six-feet tall, while the second man who participated in the robbery was around five-foot-seven. At trial, Nguy identified Sturgeon as the tall robber who struck him in the face with his pistol.

On cross-examination, Sturgeon's defense counsel questioned Nguy at length about his opportunity to observe the robbers and the conditions under which the offense occurred. Nguy admitted that he was tired after working for more than thirteen hours at his family's restaurant and that it was dark when he arrived home from his lengthy shift. Nguy insisted, however, that both robbers were illuminated by the "security light" outside his home and he was "certain" that Sturgeon was the man who struck him in the face with his pistol. As Nguy acknowledged in response to defense counsel's questioning, Nguy's initial description to police was not an exact match to Sturgeon and there were some significant inconsistencies in his identification. In contrast to Nguy's initial description of his assailant as having a goatee or facial hair on his chin, Sturgeon had a full mustache and goatee when he was taken into custody on the day of the offense. Nguy's initial description to officers made no mention of a mustache. Likewise, in contrast to Nguy's description of his assailant as a man who stood at least six-feet tall, Sturgeon is shorter than that by four inches, standing at most five-foot eight.

Officer Michael Monte of the Houston Police Department ("HPD") testified about the circumstances surrounding Sturgeon's arrest. Officer Monte explained that he encountered Sturgeon while patrolling Houston's north side on the afternoon or early evening of December 25, 1998. Officer Monte detained a car that belonged to Michael Tobias. Sturgeon was driving the car. The passengers included Michael Tobias's brother, Gregory Tobias, as well as two other individuals identified as Elvin Bonner and Alicia Holmes. Officer Monte found items belonging to Nguy, including a credit card, a social security card, and a driver's license, among other items, in Gregory Tobias's possession. No items belonging to Nguy were found in Sturgeon's possession. Bonner, however, was found in possession of a crack pipe and a pistol. The registration for Nguy's Ford

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LTD was found in the trunk of the car. All three men (Sturgeon, Bonner, and Gregory Tobias) were arrested.

After Sturgeon was arrested, he was placed in a line-up along with Gregory Tobias and Bonner on December 26, 1998.1 A robbery investigator with HPD, Officer Craig Scallan, conducted the line-up on the day in question. Officer Scallan testified that Nguy identified Sturgeon from the line-up as one of the perpetrators of the armed robbery and that he was certain that Sturgeon was the man who pistol-whipped him during the robbery.2

Gregory Tobias ("Tobias"), who was convicted of charges unrelated to the aggravated robbery,3 testified for the prosecution at Sturgeon's first trial.4 Tobias stated that he picked up Sturgeon at an apartment complex in Humble at around 7:00 or 7:30 a.m. on the morning of December 25, 1998, more than six hours after the robbery occurred at around 1:00 a.m. on December 25, 1998. Sturgeon and Tobias picked up Elvin Bonner at around 1:00 p.m. that same afternoon. Later that afternoon, all three men drove to a location where Nguy's Ford LTD was parked. Tobias testified that he saw Sturgeon and Bonner take some items from the Ford LTD's trunk. The three were arrested sometime thereafter in the Greenspoint area on Houston's north side. Tobias testified that the items belonging to Nguy, which were found in his possession and recovered by Officer Monte, were given to him by Bonner. Tobias stated, however, that he had no information about whether Sturgeon or Bonner committed any armed robbery.

Other police officers testified that they found Nguy's Ford LTD and were able to recover latent fingerprints from the car's interior. None of the fingerprints found in the car, however, were a match to Sturgeon, Bonner, or Tobias. Thus, other than Nguy's identification, there was no direct evidence linking Sturgeon to the offense.

Sturgeon did not testify in his own defense, but he planned to call at least two witnesses who would have placed him on the other side of Houston at or around the time that the robbery occurred outside of Nguy's Sharpstown-area home. Two of these witnesses had appeared at a prior court setting, but they did not appear on the day that the defense was ready to present its case. Defense counsel attempted to secure their attendance, but the trial court refused to issue writs of

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attachment. According to the bill of exceptions made by trial counsel, the witnesses would have testified that Sturgeon was in Humble, Texas, where he was residing at the time, which is thirty miles or more from the location of the robbery at Nguy's home in Sharpstown, at the time of the offense.

Defense counsel rested without putting on any witnesses. Citing the inconsistencies between Nguy's initial description of his assailant and Sturgeon's actual characteristics at the time of the offense, defense counsel argued that Sturgeon was not the perpetrator and that Nguy's identification was mistaken. The jury rejected Sturgeon's defense of mistaken identification and found him guilty as charged. The same jury sentenced Sturgeon to serve fifty years in prison.

On direct appeal, Sturgeon argued that the trial court erred by failing to issue writs of attachment to procure the attendance of his alibi witnesses at trial. The intermediate court of appeals found that Sturgeon's trial attorney failed to preserve error, but the Texas Court of Criminal Appeals reversed the conviction on this ground and remanded Sturgeon's case for a new trial. See Sturgeon v. State, 106 S.W.3d 81 (...

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    • August 31, 2010
    ...v. Feliciano, United States District Court, Docket No. CR-08-0932-01, 2009 WL 3748588 (D.Ariz. November 5, 2009); Sturgeon v. Quarterman, 615 F.Supp.2d 546, 568 (S.D.Tex.2009). 15 See, e.g., Davis v. Cline, United States District Court, Docket No. 06-3127-KHV, 2007 WL 1520916 (D.Kan. May 24......
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    • September 4, 2012
    ...United States District Court, Docket No. CR–08–0932–01 PHX–DGC, 2009 WL 3748588 (D.Ariz. November 5, 2009); Sturgeon v. Quarterman, 615 F.Supp.2d 546, 568 (S.D.Tex.2009); State v. Henderson, supra, 208 N.J. at 266, 27 A.3d 872. Although it no doubt is self-evident that a mask or other disgu......
  • State v. Walker
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    • Tennessee Court of Criminal Appeals
    • October 1, 2021
    ... ... Numerous cases have recognized that an attorney has a duty to ... prepare and supervise an expert witness. Sturgeon v ... Quarterman , 615 F.Supp. 2d 546, 572 (S.D. Tex. 2009) ... (trial counsel was deficient in preparing an eyewitness ... expert ... ...

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