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Boswell v. Davis

United States District Court, N.D. Texas, Fort Worth Division

November 22, 2017

DAVID WAYNE BOSWELL, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION and ORDER

          JOHN MCBRYDE, United States District Judge

         This is 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.

         I. Procedural History

         In 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.[1] at 14 & Action Taken.)

         The state appellate court summarized the evidence in the case as follows:

[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 the hospital.
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.)

         II. Issues

         In one 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 ...


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