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Hoisager v. Davis

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

May 14, 2018

JAMES DWAYNE HOISAGER
v.
LORIE DAVIS, Director, Texas Dept. of Criminal Justice-Correctional Institutions Division

          ORDER

          SAM SPARKS, SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court are Petitioner James Dwayne Hoisager's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1) and Respondent's Answer (Document 16). Petitioner did not file a response thereto. Hoisager, proceeding pro se, has paid the full filing fee for his application. For the reasons set forth below, Hoisager's application for writ of habeas corpus is granted in part and denied in part.

         STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According to Respondent, the Director has lawful and valid custody of Hoisager pursuant to a judgment and sentence from the 424th Judicial District Court of Burnet County, Texas, in cause number 39332, styled The State of Texas v. James Dwayne Hoisager. In a two-count indictment, Hoisager was charged with aggravated kidnapping (Count I) and aggravated assault with a deadly weapon (Count II). After a jury trial, Hoisager was convicted and sentenced to ten years' incarceration on each count with the sentences running concurrently.

         The Third Court of Appeals affirmed the convictions and sentences on July 17, 2015. Hoisager v. State, No. 03-13-00328-CR, 2015 WL 4537581 (Tex. App. -Austin 2015, pet. Ref'd). The Texas Court of Criminal Appeals refused Hoisager's petition for discretionary review on January 13, 2016. Hoisager v. State, PDR No. 1279-15.

         Hoisager filed a motion for DNA testing in the trial court on March 2, 2016. It was denied by the trial court on April 21, 2016. The Third Court of Appeals affirmed the trial court's denial. Hoisager v. State, No. 03-16-00343-CR, 2017 WL 3585197 (Tex. App. -Austin 2017, no pet.).

         Hoisager also challenged his conviction in a state application for habeas corpus relief. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court on September 28, 2016. Ex parte Hoisager, Appl. No. 85, 709-01.

         B. Factual Background

         The factual background of this case is found in the Court of Appeals opinion and is repeated below.

         On the morning of July 8, 2011, Appellant went to Brenda's [his ex-wife's] condominium, with her permission, to attend to some business on behalf of their daughter and to do his laundry. Although their daughter lived in the condominium with Brenda, Brenda and Appellant were alone that morning. Appellant became upset, having recently learned that Brenda was romantically involved with another man. When Brenda asked Appellant to leave he refused, prevented her from calling the police, held a knife to her throat, told her that they were going to go see God that night, and told her that he had paid someone to kill both of them.

         Appellant held Brenda in the condominium at knife point for several hours or more. They struggled over Brenda's loaded pistol during this time, with Appellant gaining control and putting it out of Brenda's reach. At some point in the afternoon, Appellant drove Brenda to their church for a counseling session with their pastor, Ross Chandler. Brenda testified that she did not go to the church willingly and that Appellant kept the knife on hand during the drive. Appellant and Brenda met Chandler at their church and spoke about their relationship for approximately two hours before Chandler realized that something was amiss and removed Brenda from the situation. Brenda reported the incident to the police, who arrested Appellant. Hoisager v. State, No. 03-13-00328-CR, 2015 WL 4537581 at, *1 (Tex. App. -Austin 2015, pet. refd).

         C. Petitioner's Grounds for Relief

         In his petition Hoisager raises the following grounds for relief:

1. Hoisager was convicted in violation of the Double Jeopardy Clause;
2. The trial court erred by allowing the prosecutor to amend the indictment;
3. The evidence is insufficient to support his conviction;
4. The evidence at trial was obtained in violation of the Fourth Amendment;
5. The trial court erred by admitting unadjudicated offenses; and 6. Trial counsel was ineffective for:
a. Failing to file a motion to suppress;
b. failing to communicate a plea offer to Hoisager;
c. failing to object to the inclusion of the lesser-included offense of aggravated assault; and
d. failing to request an instruction on voluntary release.

         D. Exhaustion of State Court Remedies

         Respondent does not contest that Hoisager has exhausted his state court remedies regarding the claims brought in this application. A review of the state court records submitted by Respondent shows Hoisager properly raised these claims in previous state court proceedings with the exception of his claim that counsel was ineffective for failing to object to the inclusion of the lesser-included offense of aggravated assault. Hoisager did not raise this claim in his state application. Instead, he raised the claim that counsel was ineffective for failing to request the inclusion of lesser-included offenses. Hoisager argued, if a lesser-included instruction had been made, the jury may ...


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