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Loa v. Davis

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

May 17, 2017

SANTOS LOA, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and specifically Petitioner Santos Loa's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 [#1], Respondent Lorie Davis's Response [#10], the Report and Recommendation of United States Magistrate Judge Andrew W. Austin [#12]. Having reviewed the documents, the governing law, and the file as a whole, the Court now enters the following opinion and orders.

         All matters in this case were referred to United States Magistrate Judge Andrew W. Austin for report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Loa is entitled to de novo review of the portions of the Magistrate Judge's report to which he files specific objections. 28 U.S.C. § 636(b)(1). All other review is for plain error. Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Loa did not file written objections to the Magistrate Judge's report and recommendation, and thus review is for plain error only. Nevertheless, this Court has reviewed the entire file de novo and agrees with the Magistrate Judge's recommendation.


         Petitioner Loa is in state custody pursuant to two judgments and sentences: a December 1986 aggravated sexual assault conviction, for which he was given life imprisonment, and August 1986 aggravated sexual assault conviction, for which he was also sentenced to life imprisonment. The two sentences run consecutively.

         In his habeas petition, Loa does not challenge the validity of his convictions or sentences; rather, he challenges denial of parole, which occurred on May 20, 2015. Loa filed for special review of the parole decision, but that request was denied on October 2, 2015. On November 12, 2015, Loa filed an application for state writ of habeas corpus challenging the parole decisions. Specifically, in his state application, Loa argued (1) the Texas Parole Board illegally denied him parole by relying on the same static factors for each parole decision and (2) the Texas Parole Board improperly considered his legal activities. On June 22, 2016, the Texas Court of Criminal Appeals denied relief without a written order on the findings of the trial court, which had recommended relief be denied.

         Loa then filed the instant federal petition with this Court on October 10, 2016. Loa claims he has repeatedly been denied parole for the same static reasons. He also argues the process for special review of the parole decisions is constitutionally inadequate and violates the separation of powers doctrine.

         Respondent submitted a response to Loa's petition on January 4, 2017, and Magistrate Judge Austin issued his report and recommendation on April 19, 2017.


         I. Legal Standards

         A. Exhaustion of State Remedies

         In order for a federal court to review a habeas petitioner's claim for relief, the petitioner must have exhausted the state remedies available to him. Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001). 28 U.S.C. § 2254(b)(1) expressly provides "[a]n 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 unless it appears that- (A) the applicant has exhausted the remedies available in the courts of the State . . . ." Whether a federal habeas petitioner has exhausted state remedies is a question of law. Wilder, 274 F.3dat 259. To exhaust, a petitioner "must have fairly presented the substance of his claim to the state courts." Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997) (citations omitted). "It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim was made." Anderson v. Harless, 459 U.S. 4, 6 (1982) (internal citation omitted). Indeed, "where petitioner advances in federal court an argument based on a legal theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement." Wilder, 274 F.3dat 259 (citations omitted).

         But as an exception to the general rule that a petitioner must first exhaust claims in state court, a federal court may find procedural default on a claim that would be procedurally barred if raised in state court. Coleman v. Thompson, 501 U.S. 722, 735 n.l (1991). However, when a petitioner fails 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, the petitioner can still obtain federal habeaus review if he can show either (1) cause and actual prejudice for his procedural default or (2) a failure to address the merits of the federal claim would result in a miscarriage of justice. Id. at 750.

         B. The Antiterrorism and Effective Death Penalty ...

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