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Althouse v. Davis

United States District Court, N.D. Texas, Dallas Division

August 19, 2019

Kevin Reid Althouse, Petitioner,
v.
Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division Div., Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.

         I. BACKGROUND

         Althouse 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 His parole was revoked on March 1, 2018.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).

         Respondent 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. 30.[1]

         II. PROCEDURALLY BARRED CLAIM

         A 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)).

         Althouse 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.

         Furthermore, 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 barred.

         III. REMAINING CLAIMS LACK MERIT

         A 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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