United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
SAM SPARKS, UNITED STATES DISTRICT JUDGE
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. § 636(b) and
Rule 1(e) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
proceeding pro se, was granted leave to proceed in forma
pauperis. Before the Court are Petitioner's
Application for Writ of Habeas Corpus under 28 U.S.C. §
2254 (Docket Entry “DE” 1), Respondent's
Answer (DE 7), and Petitioner's Reply (DE 9). For the
reasons set forth below, the undersigned recommends that
Petitioner's Application be denied.
has custody of Petitioner pursuant to a judgment and sentence
imposed by the 403rd District Court of Travis County, Texas.
Petitioner pleaded guilty to aggravated assault and unlawful
possession of a firearm by a felon, and was sentenced to
respective concurrent terms of two and ten years'
imprisonment. Petitioner alleges his guilty pleas were not
knowing and voluntary, that he was denied his right to due
process of law and a fair trial, and that he was denied his
right to the effective assistance of trial counsel.
OF THE CASE
following facts are taken from an affidavit for the arrest
and detention of Petitioner submitted by an Austin Police
Officer on June 27, 2015.
. . . I was flagged down [by] Matthew Gaskamp. Matthew was
pointing towards a black male wearing a white t-shirt who was
running EB on 6th [S]treet. Matthew was yelling “he has
a gun” as he approached me.
I chased the male who was later identified as Jamal Boyd.
Jamal turned SB on Neches Street and then proceeded into the
South alley at the 400 block of 6th Street. Jamal was
apprehended in this same alley. Jamal was detained and it was
later relayed to me that Jamal was involved in an altercation
with Matthew at a bar called Moose [K]nuckle . . . Matthew
explained that he is the general manager . . . and was
working the door as a doorman, when Jamal approached the bar
and walked into the bar . . .. Matthew observed Jamal to be
in violation of the “dress code” and asked Jamal
to leave. Jamal got argumentative and was later forced out of
the bar. As Jamal was standing in front of the bar, he began
cursing at Matthew and refused to leave the area. Matthew
stated that Jamal then continued to face his direction and
used his right hand to lift the front of his shirt. As Jamal
did so, Matthew observed a “black and white”
pistol in the front of Jamal's waistband. Jamal then
placed his left hand on the grip of the pistol and pulled it
out of his waistband, drawing it upwards, but still keeping
it near his abdomen. Jamal then told Matthew “I'll
fucking kill you”. Matthew states Jamal repeated this
statement a total of 3 times. Matthew states Jamal never
pointed the pistol at him, but after his statements and
actions, he believed Jamal was going to “use it and
shoot me” and he was fearful for his life.
Matthew explains that he begins to take a few steps towards
Jamal, at which time Jamal turns away and runs WB on the 400
block of 6th [S]treet. . . .
Due to Jamal exhibiting the pistol during this assault by
threat and the pistol being loaded with a live round, Jamal
was charged with aggravated assault in addition to Possession
of a Firearm by Felon, Evading and POCS Pills.
(DE 8-4 at 6).
affidavit for a warrant of arrest and detention with regard
to the charge of possession of a firearm by a felon, alleges
that the Austin Police Officer
began to pursue Boyd on foot south on Neches . . . I
continued running after Boyd and giving him verbal commands
to “STOP”. . . . he finally complied with my
commands. Boyd was ordered to the ground and taken into
custody without further incident.
Boyd was informed that he was being stopped because it was
reported he had a firearm in his possession. Boyd stated that
he had thrown the gun during the course of the foot pursuit.
When I briefly lost sight of Boyd, he had thrown the gun
under a dumpster located on the south curb line of the alley.
Boyd directed us to dumpster DE704424. Under the dumpster was
a silver Taurus semi-automatic handgun (.40 caliber). Boyd
indicated that was the gun he had on his person during the
(DE 8-8 at 5).
Petitioner's State Court Proceedings
was charged with aggravated assault with a deadly weapon and
unlawful possession of a firearm by a felon, both enhanced by
prior felony convictions for theft in 2012, and burglary of a
habitation and unauthorized use of a motor vehicle in 2010.
(DE 8-4 at 7-8; DE 8-8 at 6). Petitioner was appointed
counsel to represent him in his criminal proceedings. (DE 8-4
at 9). Petitioner testified in his own defense. (DE 8-4 at
27, 34). After the jury had retired to consider a verdict,
Petitioner decided to plead guilty to both charges. (DE 8-4
at 47). In return for his guilty pleas, the State agreed to
waive the enhancements alleged in the indictments. (DE 8-4 at
15). The potential sentence in the plea agreement for the
crime of aggravated assault, as a second-degree felony, was
not less than two years and not more than twenty years'
imprisonment. Id. With regard to the charge of being
a felon in possession of a firearm, a third-degree felony,
the written plea agreement stated that Petitioner would be
sentenced to not more than ten years and not less than two
years' imprisonment. (DE 8-8 at 21).
written plea agreements Petitioner averred he was aware of
the consequences of the plea, and that he was knowingly
waiving his right to a trial by jury, his right to confront
and cross- examine witnesses, his right to subpoena
witnesses, and his right to an appeal of his conviction and
sentence. (DE 8-4 at 17 & DE 8-8 at 23). Petitioner
further averred that he was consenting to the introduction of
evidence sufficient to establish his guilt. Id.
Petitioner further admitted and confessed that he had
committed the charged offenses as alleged in the indictments.
Id. The plea agreements signed by Petitioner each
I voluntarily enter my plea of GUILTY to the above mentioned
offense. I am pleading guilty (or nolo contendere)
because I am guilty and for no other reason. My plea is
entered freely and voluntarily, and without any coercion,
duress or promise of benefit other than that stated in the
plea bargain agreement. . . .
. . . I have read this entire document and discussed it fully
with my attorney. I understand this document completely,
including the Court's admonishments, and I am aware of
the consequences of my plea. My attorney has discussed with
me the law and facts applicable to this case, and I am
satisfied that I have been effectively represented.
(DE 8-4 at 18 & DE 8-8 at 24). In the agreements
Petitioner's counsel stated that he had advised
Petitioner of the consequences of the pleas, and Petitioner
swore he was “freely, voluntarily, knowingly and
intelligently entering [his] plea(s).” (DE 8-4 at 19
& DE 8-8 at 25). The trial court affirmed Petitioner had
been warned of the consequences of entering these guilty
pleas, including the minimum and maximum punishment provided
by law, and that Petitioner was voluntarily and knowingly
entering the pleas. Id. Petitioner was sentenced to
a term of ten years' imprisonment on the charge of
unlawful possession of a firearm, and to a concurrent term of
two years' imprisonment on the charge of aggravated
assault. (DE 8-4 at 22 & DE 8-8 at 38).
filed applications for a state writ of habeas corpus,
challenging both of his convictions. (DE 8-4 at 25-44 &
DE 8-8 at 41-62). Petitioner alleged the same claims asserted
in his federal habeas petition in each of these actions.
Id. Petitioner averred in his state habeas actions
that, had he known that because of his “aggravated 2
year sentence, my 10 year sentence would be treated 3(g) and
I would have to complete 50% before becoming eligible for
parole, ” he would not have signed the plea agreements.
(DE 8-4 at 30-31 & DE 8-8 at 46-47). Petitioner
alleged that he was in a “weak state, mentally,
physically, and emotionally” after several days of
trial, and that he signed the plea agreements due to his
depleted condition. (DE 8-4 at 31 & DE 8-8 at 47).
trial counsel filed an affidavit in his state habeas action,
1. Mr. Boyd was not coerced by me or anyone else to enter a
plea in these cases. What happened is that we went to trial
to a jury and the jury was out for a longer than expected
time deliberating. As we waited, the State's prosecutor
approached me and made us an offer. I relayed the offer to my
client and we discussed whether or not to accept it. He did
not make a snap decision; he thought it over seriously
knowing that we had no idea what the jury's verdict would
be. It was his decision to go ahead and accept the offer
although we did [make] an attempt to get the offered lowered
at the last minute but the State would not come down any
As we were in the process of filling out the paperwork
required for entry of a plea, the judge requested our
presence in the courtroom. The judge advised us that the jury
had sent out a note that  they had reached a verdict. The
judge, in open court, then asked the defendant how he wished
to proceed. Did he wish to hear the verdict or did he wish to
forego the verdict and still proceed with a plea of guilty
and accept the State's offer. The Defendant made a
decision to go forward with the plea offer and not wait to
hear the jury's verdict (the verdict was guilty on both
2. During the pendency of these cases, the State prosecutor
had made us a number of offers starting with an offer of
eight (8) years TDCJ on both charges. I discussed each and
every offer with the client as required and he rejected each
and every one of them even though he had advised me from the
beginning that he was willing to accept plead (sic) to the
charge of felon in possession of a firearm for something
close to the minimum of two years or state jail time.
We were able to secure a final offer before trial for two
years in TDCJ on the charge of Felon In Possession of a
Firearm with DISMISSAL of the Aggravated Assault charge.
However, Boyd refused to accept that offer and countered with
14 months State Jail time which the State would not agree to.
3. Boyd's claim that I told him I “had no
idea” what would make a charge a “3(g)”
offense is simply not true. I have always known that any
finding of a Deadly Weapon will convert a charge into a 3(g)
offense and would have told him when he asked. There is no
way that I would have said I did not know. In fact we had
discussed at length the possibility per the State's
Notice of Intent to ask for a finding of a Habitual Criminal
due to his juvenile record which if proven would have exposed
him to a minimum of 25 years in TDCJ. I had told him that it
was still up to the judge whether or not to allow that to
happen but the State was noticing us that that was the intent
on their part. I was very concerned with that because I could
not guarantee him that the court would not allow it. As it
turned out, just before we started the trial the court made
known that it did not feel that such enhancement was
appropriate given Boyd's juvenile record.
4. With regard to the suppression of a
“confession”, there was no
“confession” per se. What was involved was a
situation in which the police wanted to find the gun that
Boyd supposedly had the night in question. They did ask him
where it might be and the evidence and testimony was to the
effect that the defendant “indicated” by gestures
or otherwise where the gun might be. He never told them where
it was so there was no verbal communication to suppress.
Finally, as I recall, from the beginning Boyd had indicated
to me that he volunteered the whereabouts of the gun on his
own without being questioned because he wanted to avoid any
possibility of getting hurt by the police given the
circumstances. It was always my understanding that his
actions were of his own free will, and never did he indicate
that he had been forced to reveal the location.
5. My recollection is that I and Boyd went over the offense
report at the jail long before the trial and we reviewed the
information the witnesses were supposedly going to offer at
trial. There was a request made to the State for any
surveillance tapes and the State advised us there was none.
We timely filed a request under 39.14 for disclosure by the
State of all the evidence the State had in the case. The
facts of the case were not that complicated and I know Boyd
and I went over them in detail at the jail. However, I would
like to have it noted that he did refuse to speak to me on at
least one of the jail visits and walked out on another
occasion before I could go into any matters pertinent to his
6. The State did bring out the fact that Boyd had prior
felony convictions, but that occurred while he was on the
stand. When the defendant chooses to testify the State is
permitted to bring out the fact of prior felony ...