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Boyd v. Davis

United States District Court, W.D. Texas, Austin Division

June 19, 2017

JAMAL KIANO ANTHONY BOYD
v.
LORIE DAVIS

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HON. SAM SPARKS, UNITED STATES DISTRICT JUDGE

         The 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 States Magistrates.

         Petitioner, 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.

         BACKGROUND

         Respondent 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.

         STATEMENT OF THE CASE

         A. Factual Background

         The 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).

         The 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 foot pursuit.

(DE 8-8 at 5).

         B. Petitioner's State Court Proceedings

         Petitioner 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).

         In both 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 stated:

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).

         Petitioner 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).[1] 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).

         Petitioner's trial counsel filed an affidavit in his state habeas action, stating:

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 lower.
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 charges.)[2]
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 case.
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 ...

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