United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b) and Special Order 3,
Kevin Reid Althouse's petition for writ of habeas corpus
under 28 U.S.C. § 2254 was referred to the United States
magistrate judge for case management, including findings and
a recommended disposition. Upon review of the relevant
pleadings and applicable law, the Court concludes that the
petition fails in part on procedural grounds and in part on
the merits and, thus, should be DENIED.
pled guilty to aggravated assault and theft of property and
was sentenced to 25 years' imprisonment. State v.
Althouse , Nos. F-9854103-IR and F-9854179-LR (265th
Judicial Dist. Court, Dallas Cty., Texas., 1999). In 2012,
Althouse was released on parole. His parole was revoked on
March 1, 2018. The Texas Court of Criminal Appeals
subsequently denied state habeas relief without written
order. Ex parte Althouse, No. WR45, 883-23, Doc.
27-1 at 2 (Tex. Crim. App. Oct. 3, 2018). Althouse then filed
this timely, pro se, federal habeas petition,
challenging his parole revocation on due process grounds.
Doc. 8 (Amended Petition).
argues that Althouse's second claim is unexhausted and
procedurally barred and that the others lack merit. Doc. 26.
Althouse has filed a reply in opposition. Doc.
PROCEDURALLY BARRED CLAIM
petitioner must fully exhaust state remedies by fairly
presenting the factual and legal basis of any claim to the
highest state court for review before seeking federal habeas
relief. See 28 U.S.C. § 2254(b); Morris v.
Dretke, 413 F.3d 484, 490-91 (5th Cir. 2005). A Texas
prisoner may satisfy that requirement by presenting both the
factual and legal substance of his claims to the Texas Court
of Criminal Appeals (“TCCA”) in a petition for
discretionary review or in an application for a state writ of
habeas corpus under Article 11.07 of the Texas Code of
Criminal Procedure. Whitehead v. Johnson, 157 F.3d
384, 387 (5th Cir. 1998). Failure to exhaust is generally a
procedural bar to federal habeas review, although the federal
court may excuse the bar if the petitioner can demonstrate
either cause or prejudice for the default or that the
court's failure to consider the claims will result in a
fundamental miscarriage of justice. Ries v.
Quarterman, 522 F.3d 517, 523-24 (5th Cir. 2008) (citing
Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
alleges in Ground Two that the Board of Pardons and Parole
lacked jurisdiction to revoke his parole because it failed to
provide counsel and overcome the presumption that he was
mentally disabled based on an adjudication from Pennsylvania.
However, he concedes that he only raised his second claim in
a request to reopen hearing or reinstate supervision filed
more than a month after his state habeas was denied, and it
was not considered by the TCCA because it was untimely. Doc.
30 at 1; Doc. 27-1 at 41; Doc. 8 at 5. Nevertheless, he asks
“this Court to interpret this exhaustion of raising
this issue through a state administrative remedy as
preserving this issue for federal intervention.” Doc.
30 at 1. The Court declines the invitation, as Althouse has
not met the procedural requirements for exhaustion described
supra. Indeed, Texas law does not permit a motion
for rehearing of an order that denies habeas corpus relief.
SeeTex. R. App. P. 79.2(d). As such, the TCCA did
not have an opportunity to consider Althouse's claim or
any of his evidence and his second claim remains unexhausted.
Althouse has not alleged or shown cause for the default and
actual prejudice, or that a fundamental miscarriage of
justice would occur if the Court were to refuse to consider
his claim. See Coleman, 501 U.S. at 750;
see also Martinez v. Ryan, 566 U.S. 1, 13,
(2012) (“only where a prisoner is impeded or obstructed
in complying with the State's established procedures will
a federal habeas court excuse the prisoner from the usual
sanction of default”). Accordingly, Ground Two should
be dismissed with prejudice as unexhausted and procedurally
REMAINING CLAIMS LACK MERIT
petitioner is not entitled to habeas corpus relief unless the
state court's adjudication on the merits:
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented