United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION and ORDER
MCBRYDE, United States District Judge
a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 filed by petitioner, David Wayne Boswell, a state
prisoner incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ),
against Lorie Davis, director of TDCJ, respondent. After
having considered the pleadings, state court records, and
relief sought by petitioner, the court has concluded that the
petition should be denied.
April 2011, petitioner was indicted in Comanche County,
Texas, Case No. CR-03371, for aggravated assault with a
deadly weapon. (Clerk's R. at 3.) Following a jury trial,
the jury found petitioner guilty and assessed his punishment
at 8 years' confinement. (Id. at 62.)
Petitioner's conviction was affirmed on appeal, the Texas
Court of Criminal Appeals refused his petition for
discretionary review, and the United States Supreme Court
denied writ of certiorari. (Paper Record.) Boswell v.
Texas, __ U.S. __, 137 S.Ct. 1427 (2015). Petitioner
also filed a state postconviction application for writ of
habeas corpus challenging his conviction, and raising the
claim presented in this federal petition, which was denied by
the Texas Court of Criminal Appeals without written order.
(State Habeas R. at 14 & Action Taken.)
state appellate court summarized the evidence in the case as
[Petitioner] arrived at Randy and Kristy Burns's property
in the afternoon to drop off the bed of a pickup.
[Petitioner]'s wife-Tiffany Boswell (Boswell)-and their
children were already on the property when [petitioner]
arrived. Charles Fonville, whom [petitioner] had met once or
twice before, and Mason Jade Warren, who is Boswell's
first cousin, arrived in the evening. The men spent the late
afternoon and evening in Randy's shop, drinking alcohol,
while the women spent most of their time inside the
Burnses' home. Some of those present testified that
Fonville and [petitioner] had disagreements that created
tension while they were in the shop and when everyone was
inside the Burnses' home. Kris and Kristin Scitern
arrived later at the Burnses' property.
Around 10:00 p.m., Fonville and Warren left the property in
Fonville's pickup, but they returned shortly.
[Petitioner] testified that, when Fonville and Warren
returned, [petitioner] and Boswell had gathered their
children and were about to leave. [Petitioner] saw Kris
Scitern approach Fonville's pickup and have a brief
discussion with Fonville and Warren. [Petitioner] knew that
Warren did not like him because they had been in an
altercation at a previous party.
After Kris backed away from the pickup, [petitioner] saw
Warren get something from the back of Fonville's pickup.
[Petitioner] said that Fonville and Warren approached him and
that Fonville said, "I'll bet you can't whip me
and my little friend here." As they approached, Warren
was holding a shovel, and Fonville was holding something in
his left hand, although [petitioner] could not identify the
item at the time. At that point, Fonville jabbed at
[petitioner], and the two of them struggled with each other
to the ground.
[Petitioner] grabbed at Fonville's wrist and was cut in
the hand by the object Fonville was holding. As [petitioner]
wrestled with Fonville to take control of the object that had
cut him, Warren hit [petitioner] over the head with the
shovel. The shovel blows caused multiple gashes in
[petitioner]'s head, and he bled profusely. Eventually,
[petitioner] escaped, walked away from the altercation, told
Boswell to call 911, got in his pickup, and drove away toward
Boswell also testified on [petitioner]'s behalf. Boswell
said that she was present during the altercation between
Fonville and [petitioner] and that, after [petitioner] yelled
at her to call 911, she drove to get help because she could
not get cell phone reception. Boswell found Billy Carson, a
Gorman police officer, and told him that a fight was taking
place. Officer Carson followed her back to the Burnses'
property. By the time Boswell and Officer Carson arrived,
[petitioner] had left the scene.
The remaining witnesses testified against [petitioner].
According to their version of the events, Fonville, while in
the Burnses' shop, disapproved of [petitioner]'s
boasts about the towing capacity of [petitioner]'s
pickup. These witnesses claimed Boswell had left with her
children and did not see the fight between [petitioner],
Fonville, and Warren. They also said that Fonville and Warren
left the Burnses' property to get ice but returned to the
Burnses' property after they discovered the store was
closed. Once Fonville and Warren had returned to the
Burnses' property, [petitioner] and Fonville exchanged
words, and [petitioner] approached Fonville with a knife in
his hand. [Petitioner] walked toward Fonville, and the two of
them wrestled to the ground; almost immediately, the
witnesses saw large pools of blood coming from his hand.
[Petitioner] walked toward Fonville, and the two of them
wrestled to the ground; almost immediately, the witnesses saw
large pools of blood coming from beneath Fonville on the
ground. Someone yelled that [petitioner] was killing
Fonville, so Warren retrieved a shovel from the back of
Fonville's pickup and hit [petitioner] several times in
the head to break up the fight. Randy Burns testified that,
during the scuffle, he stepped on [petitioner]'s hand and
took the knife away. [Petitioner] then got off Fonville and
fled the scene in his pickup while Fonville was on the ground
bleeding from the stab wounds. Warren called 911, and
Fonville was later taken in an ambulance to a hospital.
(Mem. Op. at 2-4.)
ground, petitioner claims that his trial counsel was
ineffective because counsel "labored" under an
actual conflict of interest by simultaneously representing
petitioner and Warren, one of the ...