United States District Court, W.D. Texas, Austin Division
SPARKS, SENIOR UNITED STATES DISTRICT JUDGE
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.
OF THE CASE
Petitioner's Criminal History
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
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.
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.).
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.
factual background of this case is found in the Court of
Appeals opinion and is repeated below.
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.
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).
Petitioner's Grounds for Relief
petition Hoisager raises the following grounds for relief:
1. Hoisager was convicted in violation of the Double Jeopardy
2. The trial court erred by allowing the prosecutor to amend
3. The evidence is insufficient to support his conviction;
4. The evidence at trial was obtained in violation of the
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.
Exhaustion of State Court Remedies
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 ...