Loa v. Davis

Filing 12

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Santos Loa. It is recommended that Petitioners application for writ of habeas corpus be denied. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
SANTOS LOA
V.
LORIE DAVIS, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division

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A-16-CA-1146-SS

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1) and Respondent’s Answer (Document 10). Petitioner, proceeding pro se, has
paid the filing fee for his application. For the reasons set forth below, the undersigned finds that
Petitioner’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Respondent, the Director has custody of Petitioner pursuant to a judgment and

sentence of the 26th Judicial District Court of Williamson County, Texas in cause numbers 86-253K and 86-252-K. Petitioner was charged as a habitual offender with aggravated sexual assault. A
jury found Petitioner guilty and the trial court assessed punishment on December 10, 1986, at life
imprisonment to run consecutive to the life sentence in cause number 86-253-K. Petitioner does not

challenge his holding convictions. Rather, he challenges the failure to release him on parole.
Respondent asserts the most recent parole denial decision was provided to Petitioner on May 20,
2015. His request for special review of the parole decision was denied on October 2, 2015. On or
about November 12, 2015, Petitioner filed an application for state writ of habeas corpus challenging
the parole decisions. On June 22, 2016, the Texas Court of Criminal Appeals denied relief on the
trial court’s findings. Ex parte Loa, No. WR-19,702-04.
B.

Petitioner’s Grounds for Relief
Petitioner argues he has repeatedly been denied parole for the same static reasons. He further

argues the special review process is constitutionally inadequate and violates the separation of powers
doctrine.
C.

Exhaustion of State Court Remedies
To the extent Petitioner challenges the special review procedures Respondent argues

Petitioner failed to exhaust his state court remedies, and thus, his claim is procedurally barred.
Respondent does not contest that Petitioner has exhausted his state court remedies regarding the
denial of parole claim. A review of the state court records submitted by Respondent shows that
Petitioner has properly raised that claim in previous state court proceedings.
DISCUSSION AND ANALYSIS
A.

Unexhausted Claim
Petitioner has not exhausted his claim that the special review procedures of the parole

decision violate the separation of powers doctrine. Petitioner’s unexhausted claim is procedurally
barred. A subsequent state application for habeas corpus on Petitioner’s unexhausted issue would
be futile as it would be dismissed pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 as an
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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, 111 S. Ct. 2546, 2553 (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 that 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.
Petitioner has failed to show cause and actual prejudice for his procedural default and has
made no showing that a failure to address the merits of the federal claim would result in a
miscarriage of justice. Therefore, Petitioner is barred from raising his unexhausted claim.
B.

The Antiterrorism and Effective Death Penalty Act of 1996
Petitioner’s remaining claim is analyzed pursuant to the 1996 Antiterrorism and Effective

Death Penalty Act (“AEDPA”). The Supreme Court has summarized the basic principles that have
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grown out of the Court’s many cases interpreting the AEDPA. See Harrington v. Richter, 562 U.S.
86, 96-100 (2011). The Court noted that the starting point for any 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 that “[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 that 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 that it had
previously concluded that “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.” Id. And even when a state court fails to state

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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
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 that a federal court must presume state court fact determinations to

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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.
C.

Parole
Petitioner argues he has been denied parole for the same static reasons. Petitioner raised this

same issue in his state application for habeas corpus relief. The state courts rejected the merits of
Petitioner’s claim. As such, the AEDPA limits the scope of this Court’s review to determining
whether the adjudication of Petitioner’s claim by the state court either (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.
The United States Constitution does not create a liberty interest in parole. Greenholtz v.
Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Likewise, Texas law makes
parole discretionary and does not create a liberty interest in parole that is protected by the Due
Process Clause. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); see also Johnson v. Rodriguez,
110 F.3d 299, 308 (5th Cir. 1997). Because Texas inmates have no protected liberty interest in
parole, they cannot have a liberty interest in parole consideration or other aspects of parole
procedures. Id. at 308) (stating that Texas prisoners cannot mount a challenge against any state
parole review procedure on procedural or substantive due process grounds). It is entirely up to each
State whether it chooses to create a parole system and the amount of discretion with which it entrusts
its parole decisionmakers.
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Parole is a privilege, not a right, even after an inmate accrues the minimum amount of timeserved credit necessary to be eligible for parole. See Greenholtz, 442 U.S. at 7 (convicted persons
have no constitutional right to be conditionally released before the expiration of a valid sentence);
37 TEX. ADMIN. CODE § 145.3(1) (“Release to parole is a privilege, not an offender right, and the
parole decision maker is vested with complete discretion to grant, or to deny parole release as
defined by statutory law.”). An inmate who has met the minimum requirement for time served under
the applicable parole eligibility statute is not automatically entitled to be released on parole; rather,
he is only entitled to a review to determine whether or not he will be released on parole. See 37 TEX.
ADMIN. CODE § 145.3(1) (“[T]he parole decision maker is vested with complete discretion to grant,
or to deny parole release. . . .”) (emphasis added); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995)
(because a prisoner has no liberty interest in obtaining parole in Texas, he cannot complain of the
constitutionality of procedural devices attendant to parole decisions). Because Petitioner has no
liberty interest in obtaining parole in Texas, he has no claim for violation of due process in the
procedures attendant to his parole decisions. Orellana, 65 F.3d at 31.
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. Accordingly, Petitioner’s claim does not warrant
federal habeas relief.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be denied.

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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 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the 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
Slack v. 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 dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court not issue
a certificate of appealability.
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OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985);
Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
SIGNED this 19th day of April, 2017.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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