Hoisager v. Director, TDCJ-CID

Filing 21

ORDER GRANTING IN PART AND DENYING IN PART 1 Petition for Writ of Habeas Corpus. It is further ORDERED that Petitioner's conviction and sentence for aggravated assault be vacated unless the State provides Petitioner with a new trial within 6 0 days of final judgment in this case and that Respondent shall file an advisory within 60 days of the final judgment in this case and inform the Court whether Petitioner's conviction and sentence for aggravated assault was vacated or whether Petitioner was provided a new trial. It is finally ORDERED that a certificate of appealability is DENIED. Signed by Judge Sam Sparks. (dl)

IN TI-IE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

JAMES DWAYNE HOISAGER

zm MAY

I

I

i

IO

§
§

V.

§

A-17-CA-902-SS

§

LORIE DAVIS, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division

§

§
§

ORDER
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).

314

The Texas Court of Criminal Appeals refused Hoisager's petition for discretionary review on

January 13, 2016. Hoisager

v.

Stale, PDRNo. 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. Exparte 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.

2

Hoisager v. State, No. 03-13-00328-CR, 2015 WL 4537581 at,

*1 (Tex. App.

Austin 2015, pet.

ref'd).
C.

Petitioner's Grounds for Relief
In his petition Hoisager raises the following grounds for relief:

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.

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.

D.

Failing to file a motion to suppress;

failing to request an instruction on voluntary release.

Exhaustion of State Court Remedies
Respondent does not contest that 1-loisager 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

3

offenses. Hoisager argued, if a lesser-included instruction had been made, the jury may have had

a different opinion concerning his guilt of aggravated kidnapping or aggravated assault. Hoisager

complains the jury's only option on both counts was guilt or acquittal.

DISCUSSION AND ANALYSIS
A.

The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court has summarized the basic principles that have grown out of the Court's

many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington
v.

U.S. -, 131 S. Ct. 770, 783-85 (2011). The Court noted the starting point for any

Richter,

federal court in reviewing a state conviction is 28 U.S.C.

§

2254, which states in part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C.

§

2254(d). The Court noted "[b]y its terms

§

2254(d) bars relitigation of any claim

'adjudicated on the merits' in state court, subject only to the exceptions in § 2254(d)(1) and (d)(2)."

Harrington, 131 S. Ct. at 784.
One of the issues Harrington resolved was "whether § 2254(d) applies when a state court's

order is unaccompanied by an opinion explaining the reasons relief has been denied." Id. Following
all of the Courts of Appeals' decisions on this question, Harrington concluded the deference due a

state court decision under

§

2554(d) "does not require that there be an opinion from the state court

explaining the state court's reasoning." Id. (citations omitted). The Court noted it had previously
concluded "a state court need not cite nor even be aware of our cases under

§

2254(d)." id. (citing

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no explanation with a state court
decision, the habeas petitioner's burden is to show there was "no reasonable basis for the state court
to deny relief." Jd. And even when a state court fails to state which of the elements in a multi-part

claim it found insufficient, deference is still due to that decision, because " 2254(d) applies when
a 'claim,' not a component of one, has been adjudicated." Id.
As Harrington noted,

§

2254(d) permits the granting of federal habeas relief in only three

circumstances: (1) when the earlier state court's decision "was contrary to" federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision "involved an

unreasonable application of" such law; or (3) when the decision "was based on an unreasonable

determination of the facts" in light of the record before the state court. Id. at 785 (citing 28 U.S.C.
§

2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The "contrary to" requirement "refers to

the holdings, as opposed to the dicta,

of. . [the Supreme Court's] decisions as of the time of the

relevant state-court decision." Dowthitt

.

v.

Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quotation

and citation omitted).
Under the "contrary to" clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by. . . [the Supreme Court] on
a question of law or if the state court decides a case differently than. . . [the Supreme
Court] has on a set of materially indistinguishable facts.
Id. at 740-41 (quotation and citation omitted). Under the "unreasonable application" clause
§

of

2254(d)(1), a federal court may grant the writ "if the state court identifies the correct governing

5

legal principle

from... [the Supreme Court's] decisions but unreasonably applies that principle to

the facts of the prisoner's case." Id. at 741 (quotation and citation omitted). The provisions of

2254(d)(2), which allow the granting of federal habeas relief when the state court made an

§

"unreasonable determination of the facts," are limited by the terms of the next section of the statute,
§

2254(e). That section states a federal court must presume state court fact determinations to be

correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28

U.S.C.

§

2254(e)(1). But absent such a showing, the federal court must give deference to the state

court's fact findings. Id.
B.

Double Jeopardy
In his first ground for relief Hoisager argues his convictions violate the Double Jeopardy

Clause. He explains aggravated assault is a lesser-included offense of aggravated kidnapping.

Hoisager raised this claim in his state application for habeas corpus relief. The State confessed error
and noted the appropriate remedy was to vacate the conviction and sentence for the lesser-included
offense. Without explanation the trial court found no violation of Hoisager's Fifth Amendment

rights and recommended the denial of the state application for habeas corpus relief The Texas Court

of Criminal Appeals denied the state application without written order on the findings of the trial
court without a hearing.
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
provides no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."
U.S. CONST. amend.

V. The Double Jeopardy Clause "protects against multiple punishments for the

same offense." Brown

v.

Ohio, 432 U.S. 161, 165 (1977) (quoting North Carolina

U.S. 711, 717 (1969), overruled on other grounds, Alabama

v.

v.

Pearce, 395

Smith, 490 U.S. 794 (1989)). The

most common question for the court's consideration when there are two convictions out of the same
incident is whether the two convictions represent multiple punishments for the same offense.
Generally, the applicable test to determine whether there are two offenses or only one is whether
each provision of a statutory offense requires proof of an additional fact which the other does not.
See Blockburger

v.

United States, 284 U.S. 299, 304 (1932).

Because Hoisager argues his convictions under two separate statutes violate the Double

Jeopardy Clause, the Court must apply the test outlined in Blockburger and its progeny. "The
same-elements test ... inquires whether each offense contains an element not contained in the other;

if not, they are the 'same offense' and double jeopardy bars additional punishment and successive
prosecutions." Mimer

v.

Johnson, 210 F.3d 368, 368 (5th Cir. 2000) (quoting United States

v.

Dixon, 509 U.S. 688, 696 (1993)). In Texas, the Blockburger test is the starting point in the analysis

ofa multiple-punishments double-jeopardy claim. Bigon v. State, 252 S.W.3d 360, 370 (Tex. Crim.
App. 2008). When resolving whether two crimes are the same for double-jeopardy purposes, Texas

courts focus on the elements alleged in the charging instrument. Id. (citing Parrish
S .W.2d

v.

State, 869

352, 354 (Tex. Crim. App. 1994)). "Under the cognate-pleadings approach adopted by [the

Court of Criminal Appeals, double-jeopardy challenges should be made even to offenses that have

differing elements under Blockburger, if the same 'facts required' are alleged in the indictment."
Id. (citing Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007)).

In this case, Hoisager was convicted under two separate chapters of the Texas Penal Code:
§

20.04 (aggravated kidnapping) and

§

22.02(a)(2) (aggravated assault with a deadly weapon).

Hoisager' s indictment alleged he intentionally and knowingly abducted his ex-wife by restraining

her with the intent to prevent her liberation by using and threatening to use deadly force against her,
7

restrained his ex-wife by restricting her movements without her consent so as to interfere
substantially with her liberty by confining her, and used a deadly weapon. The indictment further
alleged Hoisager intentionally and knowingly threatened his ex-wife with imminent bodily injury
and used and exhibited a deadly weapon.

Tracking the relevant statutes, the charge of the court instructed a person commits the offense

of aggravated kidnapping if a person intentionally or knowingly abducts another person and uses or
exhibits a deadly weapon during the commission of the offense. See TEx. PENAL CODE 22.04(b).
§
The charge further instructed a person commits the offense of aggravated assault if the person

intentionally or knowingly threatens another with imminent bodily injury and uses or exhibits a
deadly weapon. See TEX. PENAL CODE

§

22.02(a)(2).

Respondent concedes she caimot reconcile the Court of Criminal Appeals' holding in

Hoisager's case with holdings in cases previously decided by the Texas Court of Criminal Appeals.
Respondent explains the double-jeopardy issue in Girdy v. State, 213 S.W.3d 315 (Tex. Crim. App.
2006), is nearly identical to the claim raised by Hoisager. In Girdy, the Court of Criminal Appeals

analyzed whether, in a single course of conduct as charged, aggravated assault with a deadly weapon
was a lesser-included offense of aggravated kidnapping for purposes of the Double Jeopardy Clause.
The charging language in Girdy was nearly identical to the language used in Hoisager's charge. In

Girdy the Court of Criminal Appeals found a double-jeopardy violation, but in Hoisager's case they
did not.
Respondent suggests the Court grant habeas corpus relief with respect to Hoisager's double-

jeopardy claim and notes the proper remedy is for the state court to vacate Hoisager' s conviction and
sentence for the lesser-included offense of aggravated assault. In light of Respondent's concession,

habeas corpus relief. Similar to Girdy, Hoisager's aggravated assault is a lesser-included offense of

aggravated kidnapping because it is "established by proof of the same or less than all the facts
required to establish the commission

of' the aggravated kidnapping, and there was not clear

legislative intent to punish the offenses separately.
C.

Amendment of Indictment
In his next ground for relief, Hoisager asserts the trial court erred by allowing the state to

amend the indictment after the start of trial and not granting the defense ten days afterwards to
prepare for trial. The indictment originally stated Appellant abducted and restrained Brenda by
confining her to her home. Hoisager, 2015 WL 4537581 at, * 3. The revised indictment stated he
abducted and restrained her by confining her, without specifying the location of confinement. Id.

Hoisager raised this issue in his direct appeal. The state appellate court held the deleted language
was surplusage and not legally essential to the offense of aggravated kidnapping. Id. The appellate
court concluded the trial court did not error by allowing the state to delete the surplusage and did not
error in denying Hoisager's request for additional time. Id.

Hoisager' s claim does not raise an issue of federal constitutional dimension. The amendment

of a state indictment is governed by a Texas procedural rule. TEx. CODE CRIM. PROC. art. 28.10(a).
Because "[f]ederal courts hold no supervisory authority over state judicial proceedings and may

intervene only to correct errors of constitutional dimensions," the failure of a state court to comply
with a state procedural rule presents a question of state law only. Smith

v.

Phillips, 455 U.S. 209,

221 (1982). For that reason, this Court ordinarily will not review questions

procedure. Moreno

v.

of state criminal

Estelle, 717 F.2d 171, 179 (5th Cir. 1983). A question of constitutional

dimension arises only where a violation of state procedure amounts to a violation of due process that

renders the trial as a whole fundamentally unfair. Sawyer v. Butler, 848 F.2d 582, 5 94-95 (5th Cir.
1988). Hoisager shows no such due process violation here.
D.

Sufficiency of the Evidence
In his next ground for relief Hoisager argues the evidence was insufficient to sustain his

conviction. As explained by Respondent, this claim is procedurally barred.
Hoisager presented this claim in his state application for habeas corpus relief but not on direct
appeal. The Court of Criminal Appeals has long held the sufficiency of the evidence may only be

raised on direct appeal and may not be raised in a state habeas proceeding. West v. Johnson, 92 F.3d
1385, 1389 n. 18 (5th Cir.1996), cert. denied, 520 U.S. 1242 (1997); Exparte McLain, 869 S.W.2d

349, 350 (Tex. Crim. App. 1994). Indeed, the Court of Criminal Appeals reaffirmed its holding that

where a state habeas applicant challenges the sufficiency of the evidence in a state habeas application
and the court subsequently disposes ofthe application by entering a denial without written order, the

applicant's sufficiency claim was denied because it was not cognizable. Ex parte Grigsby, 137
S.W.3d 673, 674 (Tex. Crim. App. 2004). Thus, this procedural default in the state courts
procedurally bars this Court from addressing the merits of Hoisager's sufficiency of the evidence
claim. Ylst

E.

v.

Nunnemaker, 501 U.S. 797, 801-07 (1991).

Fourth Amendment Violation
Hoisager next argues the trial court erred by admitting evidence in violation of the Fourth

Amendment. Hoisager complains police officers went to his apartment without his consent and
seized four undated letters that were used as evidence to show bad character and an intent to commit

the instant offense. Hoisager argues police manipulated or abused their authority to convince

Hoisager's daughter to allow the officers into his home while he was being treated at a hospital.
10

As explained by Respondent, a federal court may not grant habeas relief based on a Fourth

Amendment violation where the state has provided an opportunity for full and fair litigation of the
issue. Stone

v.

Powell, 428 U.S. 465, 493-95 (1976); Janecka

v.

Cockrell, 301 F.3d 316, 320 (5th

Cir. 2002). A petitioner must plead and prove the state court proceeding was inadequate in order to

obtain post-conviction relief in federal court. Davis

v.

Blackburn, 803 F.2d 1371, 1372 (5th Cir.

1986). Hoisager had the opportunity to file a motion to suppress in the trial court but failed to do
so. Petitioner also raised his Fourth Amendment challenge in his state habeas application. The

Texas Court of Criminal Appeals denied the application without written order.
It is apparent Petitioner was afforded a full and fair opportunity to litigate his Fourth

Amendment issues in state court. Petitioner is therefore barred from seeking federal habeas relief
on these grounds. See Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) ("An 'opportunity
for full and fair litigation' means just that: an opportunity. If a state provides the processes whereby
a defendant can obtain full and fair litigation

of a Fourth Amendment claim, Stone v. Powell bars

federal habeas corpus consideration of that claim whether or not the defendant employs those

processes"). Accordingly, Hoisager is not entitled to federal habeas corpus relief on this claim.
F.

Trial Court Erred
In his next ground for relief Hoisager argues the trial court erred in admitting evidence of

extraneous bad acts. He states the trial court allowed the introduction of evidence that was neither

relevant or probative. When raised in his state application for habeas corpus relief, the state court
found this issue should have been raised at trial or by direct appeal. ECF #11-34 at 98.

Although Hoisager raised this claim in his state application for habeas corpus relief, he did
not raise the claim on direct appeal. The state court clearly relied upon firmly established and
11

regularly followed state procedural rules to deny the claim. See Busby v. Dretke, 359 F.3d 708, 719
(5th Cir. 2004) (recognizing the rule established in Exparte Gardner, 959 S.W.2d 189 (Tex. Crim.
App. 1998), wherein the Texas Court of Criminal Appeals held record-based claims not raised on

direct appeal are forfeited from state habeas review, is "firmly established" and "an adequate state
ground capable of barring federal habeas review")
To overcome these procedural bars, a habeas petitioner must demonstrate: (1) cause for the

procedural default and actual prejudice as a result of the alleged violation of federal law; or (2)
failure to consider the claim will result in a "fundamental miscarriage of justice"i.e., that he is
actually innocent of the offenses for which he was convicted. Coleman v. Thompson, 501 U.S. 722,
749-50 (1991). Hoisager makes no such showing. Thus, his claim is procedurally barred from this

Court's review.
G.

Ineffective Assistance of Trial Counsel
In his final ground for relief Hoisager argues he received ineffective assistance of trial

counsel. Hoisager alleges counsel was ineffective for (1) failing to file a motion to suppress, (2)

failing to communicate a plea offer, (3) failing to object to the inclusion of the lesser-included
offense of aggravated assault, and (4) failing to request an instruction on voluntary release.
Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth
in Stricklandv. Washington, 466 U.S. 668 (1984):

First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.
Second, the defendant must show that the deficient performance prejudiced the
defense. This requires showing that counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable. Unless a defendant can make

12

both showings, it cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result unreliable.
Id. at 687. In deciding whether

counsel's performance was deficient, the Court applies a standard

of objective reasonableness, keeping in mind that judicial scrutiny of counsel's performance must
be highly deferential. Id. at 686-689. "A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."
Id. at 689. "Because

of the difficulties inherent in making the evaluation, a court must indulge a

strong presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy." Id. (Citation omitted). Ultimately, the
focus of inquiry must be on the fundamental fairness of the proceedings whose result is being

challenged. Id. at 695-97. Accordingly, in order to prevail on a claim of ineffective assistance of
counsel, a convicted defendant must show (1) counsel's representation fell below an objective

standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. Id. at 687.
1.

Motion to Suppress

Hoisager contends counsel should have filed a motion to suppress letters found at his home.
Although the letters were offered into evidence, the trial court sustained counsel's objections and the
letters were not admitted. Because the letters were not admitted into evidence, he cannot show

prejudice.

13

2.

Plea Offer

Hoisager alleges his attorney failed to convey a last-minute plea offer. On state habeas
review counsel provided her affidavit to the trial court. ECF #11-34 at 93-94. Counsel stated
Hoisager was given each plea offer as it was delivered from the state with the freedom to accept or

reject the offer. Id. at 94. Attached to her affidavit is an email string between her and Hoisager. Id.
at 96-97. In an email from Hoisager to counsel dated February 19, 2013, Hoisager references a ten-

year probation offer and informs counsel he does not wish to accept the offer because of the impact
it might have on another case against him out of Midland County. Id. at 96. In a February 22, 2013

email from counsel to Hoisager counsel references an earlier 20-year offer in the Texas Department

of Criminal Justice and the then current offer often years deferred adjudication. Id. at 97. Hoisager
admits counsel kept him "reasonably informed" of all plea deals but asserts the reason he did not
"move on any offer made by the prosecution was because at the time of the case in chief he was
trying to ensure that by accepting any plea offer it would not effect the probation that he was
serving." ECF #1-1 at 18. Hoisager claims counsel knew this and after the probation issue was

resolved she never informed him of any further plea offers made by the prosecution until his trial
began and all plea offers were withdrawn. Id.
"It is well established that a criminal defendant's right to effective assistance of counsel
under the Sixth Amendment extends not just to trial or sentencing but to 'the negotiation of a plea

bargain,' as it 'is a critical phase of litigation for the purposes of the Sixth Amendment right to
effective assistance of counsel." United States v. Scribner, 832 F.3d 252, 257-58 (5th Cir. 2016)
(quoting Padilla

v.

Kentucky, 559 U.S. 356, 373 (2010)). Accordingly, the Strickland test applies

to Hoisager's claim that his counsel was ineffective in failing to communicate last-minute plea

14

offers. See Missouri v. Frye, 566 U.S. 134, 145 (2012) ("[AIs a general rule, defense counsel has

the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions

that may be favorable to the accused."). To establish prejudice resulted from counsel's failure to
communicate an offer a habeas petitioner must demonstrate a reasonable probability that, but for

counsel's ineffective advice, a plea would actually have been presented to the court; the court would
have accepted the terms of the plea; and "the conviction or sentence, or both, under the offer's terms

would have been less severe than under the judgment and sentence that in fact were imposed."

Lafler v. Cooper, 566 U.S. 156, 164 (2012).
Hoisager does not specify what plea offer was not communicated to him. The state court
record reveals Hoisager was aware of a 20-year prison offer and a 10-year deferred adjudication offer

and he rejected both. There is no evidence of any further plea offers. On state habeas review the
trial court held Hoisager's claim was unfounded. ECF #11-34 at 98.
Having independently reviewed the entire state court record, this Court finds nothing

unreasonable in the state court's application of clearly established federal law or in the state court's
determination of facts in light of the evidence.
3.

Failure to Object to Double-Jeopardy Violation

Hoisager asserts counsel failed to object to the jury instruction on the lesser-included offense

of aggravated assault. Hoisager contends, had counsel objected, the court would have discovered
the double-jeopardy violation.

Hoisager's claim is procedurally barred. He did not raise this claim in his state application
for habeas corpus relief.

A subsequent state application for habeas corpus on Petitioner's

unexhausted issue would be futile as it would be dismissed pursuant to
15

TEx.

CODE CmM. PROC.

ANN. art. 11.07, § 4 as an abuse

of the writ. When a state court decision rests on a state law ground

that is independent of a federal question and adequate to support the judgment, federal courts lack

jurisdiction to review the merits of the case. Coleman

v.

Thompson, 501 U.S. 722, 729 (1991). In

order for a claim of procedural default to preclude federal review of a habeas petitioner's claim, the
last state court issuing a reasoned decision must have clearly and unequivocally relied upon the

procedural default as an independent and adequate ground for denying relief. Harris v. Reed, 489

U.s. 255, 262 (1989). Additionally, even though a claim has not been reviewed by the state courts,
this Court may find the claim to be procedurally barred. Coleman, 501 U.s. at 735. The general rule
that a state court must explicitly apply a procedural bar to preclude federal review does not apply to

those cases where a petitioner has failed to exhaust his state court remedies and the state court to
which he would be required to present his unexhausted claims would now find those claims to be

procedurally barred. Id. at n. 1. However, a petitioner can still obtain federal habeas review on a

claim denied by the state court on the grounds of procedural default if he can show cause and actual
prejudice for his procedural default or that a failure to address the merits of the federal claim would

result in a miscarriage of justice. Moore

v.

Roberts, 83 F.3d 699, 702 (5th Cir. 1996) (citing

Coleman, 501 U.S. at 750).

Hoisager has failed to show cause and actual prejudice for his procedural default. Hoisager
also has made no showing that a failure to address the merits of the federal claim would result in a

miscarriage ofjustice. Because the Court grants habeas corpus relief on Hoisager' s double-jeopardy
claim, there is no miscarriage ofjustice. Therefore, Hosiager is barred from raising his unexhausted
claim.

16

4.

Failure to Request Voluntary Release Instruction

In his final ground for relief Hoisager argues counsel was ineffective for failing to request
a jury instruction on voluntary release. The Texas Code of Criminal Procedure provides aggravated

kidnapping is a first-degree felony, unless, at the punishment stage of the trial the defendant proves
by a preponderance of the evidence the victim was voluntarily released in a safe place, whereupon
it is a second-degree felony. TEx. PENAL CODE

§

20.04(c)-(d) (West 2012). The punishment range

for a first-degree felony is from five to ninety-nine years' incarceration, or life incarceration.

TEX.

PENAL CODE § 12.32 (West 2012). The punishment range for second-degree felony is from two to

twenty years.

TEx. PENAL

CODE

§

12.33 (West 2012)

On state habeas review counsel responded, "the instruction did not fit the evidence that was

presented." ECF #11-34 at 94. Counsel recalled Hoisager's ex-wife testified she escaped from
Hoisager by calling a friend and setting up a ruse with the help of the pastor so that she could escape

out of the church side doors. Id. Counsel concluded an escape by a victim does not fit within the
affirmative defense for voluntary release. Id. The trial court found Hoisager's claim unfounded.
ECF #11-34 at 98.

Counsel was not deficient in failing to request a release instruction.

See Johnson

v.

Cockrell,

306 F.3d 249, 255 (5th Cir. 2002) (concluding counsel is not required to make futile motions or

frivolous objections); Green

v.

Johnson,

160 F.3d 1029, 1037, 1042 (5th Cir. 1998) ("[m]ere

conclusory allegations in support of a claim of ineffective assistance of counsel are insufficient to
raise a constitutional issue" and "counsel is not required to file frivolous motions or make frivolous

objections"). As noted by trial counsel, the evidence in Hoisager's case did not support an
instruction on voluntary release. Having independently reviewed the entire state court record, this
17

Court finds nothing unreasonable in the state court's application of clearly established federal law

or in the state court's determination of facts in light of the evidence with respect to Hoisager's final

ground for relief.

CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding "unless a circuit justice or judge issues a certificate of appealability." 28
§

225 3(c) (1 )(A). Pursuant to Rule

11

U.s.c.

ofthe Federal Rules Governing Section 2254 Cases, effective

December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a "substantial showing of the denial of a constitutional right" in
Slackv. McDaniel,

529 U.S. 473, 484 (2000). In cases where a district court rejected a petitioner's

constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong." Id. "When a

district court denies a habeas petition on procedural grounds without reaching the petitioner's
underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists

of reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling." Id.
In this case, reasonable jurists could not debate the Court's rulings on Hoisager's section

2254 petition on substantive or procedural grounds, nor find the issues presented are adequate to
18

deserve encouragement to proceed.
529

Miller-El

v.

Cockrell, 537 U.S. 322, 327 (2003)

(citing Slack,

U.s. at 484). Accordingly, a certificate of appealability is denied.
It is therefore ORDERED that Petitioner Hoisager's Application for Habeas Corpus Relief

under 28

U.S.C. § 2254

(Document 1) is GRANTED IN PART AND DENIED IN PART.

It is further ORDERED that Petitioner's conviction and sentence for aggravated assault be

vacated unless the State provides Petitioner with a new trial within 60 days of final judgment in this
case.
It is further ORDERED that Respondent shall file an advisory within 60 days of the final

judgment in this case and inform the Court whether Petitioner's conviction and sentence for
aggravated assault was vacated or whether Petitioner was provided a new trial.
It is finally ORDERED that a certificate of appealability is DENIED.

SIGNED this

/'

day of May 2018.

SENIOR UNITED STATES DISTRICT JUDGE

19