Loya v. Underwood ( 2021 )

Case: 20-10332 Document: 00516001066 Page: 1 Date Filed: 09/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10332 September 1, 2021
Summary Calendar Lyle W. Cayce
Clerk
Alexander Loya,
Petitioner—Appellant,
versus
NFN Underwood, Warden
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-216
Before Southwick, Oldham, and Wilson, Circuit Judges.
Per Curiam:*
Alexander Loya, federal prisoner # 17693-035, appeals the dismissal
of his 28 U.S.C. § 2241 application. Loya filed the § 2241 application to
challenge his military court convictions and sentences for abusive sexual
contact with a child, indecent liberties with a child, and aggravated sexual
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-10332
contact with a child who had not obtained the age of 12 years. In his
application, Loya alleged that his wife bribed and coerced the victim to testify
falsely against him. He attached to his application affidavits and other
evidence that he contended supported his claim. The district court dismissed
Loya’s application on the grounds that the military courts had fully and fairly
considered his claims and that any freestanding claim of actual innocence was
not cognizable as an independent ground for habeas relief.
On appeal, Loya challenges the district court’s finding that the
military courts had fully and fairly considered his claims and asserts that the
only issue before the court is whether his convictions should be allowed to
stand in light of his allegation of bribery and coercion of the victim to testify
falsely against him. Loya contends that his convictions violated his Fifth and
Fourteenth Amendment due process rights, his Fifth Amendment right to an
indictment by a grand jury, and his Sixth Amendment rights to an impartial
jury and to confront adverse witnesses. We review the district court’s factual
findings for clear error and its conclusions of law de novo. Christopher v.
Miles, 342 F.3d 378, 381 (5th Cir. 2003).
Federal courts have jurisdiction pursuant to § 2241 over petitions for
habeas corpus filed by individuals challenging military convictions. See Burns
v. Wilson, 346 U.S. 137, 139 (1953). However, “in military habeas corpus the
inquiry, the scope of matters open for review, has always been more narrow
than in civil cases.” Id. Review of a military conviction is appropriate only
where, inter alia, “the claim of error is one of constitutional significance, or
so fundamental as to have resulted in a miscarriage of justice.” Calley
v. Callaway, 519 F.2d 184, 199 (5th Cir. 1975). Loya has failed to satisfy our
“first inquiry” in analyzing an applicant’s § 2241 application insofar as he
fails to demonstrate that his allegations raise a claim of “constitutional
significance.” Id.
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As to Loya’s claim that his due process rights were violated, Loya does
not allege that the Government was involved in the alleged bribery scheme or
even knew about it. Furthermore, he does not allege that the Government
knowingly used or failed to correct the victim’s purportedly false testimony
or that the Government knew that the victim’s testimony was unreliable and
failed to disclose such a fact. See Giglio v. United States, 405 U.S. 150, 153–
54 (1972); Napue v. Illinois, 360 U.S. 264, 269 (1959). Accordingly, Loya has
failed to allege a cognizable claim that his due process rights were violated.
As to his claim that his right to a grand jury indictment was violated,
the Fifth Amendment right to a grand jury indictment, by its express terms,
does not apply to members of the armed forces. See United States v. Hennis,
79 M.J. 370, 378–79 (C.A.A.F. 2020); see also Solorio v. United States, 483
U.S. 435, 439 (1987). As such, Loya has failed to allege a cognizable claim
that his Fifth Amendment right to an indictment by grand jury was violated.
With respect to his argument that his Sixth Amendment rights were
violated, “the right to a jury trial does not apply to courts-martial, and never
has.” Betonie v. Sizemore, 496 F.2d 1001, 1007 (5th Cir. 1974). Further, he
fails to state a cognizable Sixth Amendment claim that he was denied the right
to confront adverse witnesses because he does not allege that he was
prohibited from being present in the courtroom during the testimony of any
adverse witnesses, that he was prohibited from cross-examining any adverse
witnesses, or that his cross-examination of any adverse witnesses was limited
in any detrimental way. See United States v. Hitt, 473 F.3d 146, 156 (5th Cir.
2006); United States v. De Los Santos, 810 F.2d 1326, 1333–34 (5th Cir. 1987).
Finally, to the extent that Loya attempts to raise a stand-alone
innocence claim, this court does not recognize freestanding claims of actual
innocence on federal habeas review; an allegation of actual innocence does
not by itself establish a constitutional violation. See In re Swearingen, 556 F.3d
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No. 20-10332
344, 348 (5th Cir. 2009) (per curiam) (citing Graves v. Cockrell, 351 F.3d 143,
151 (5th Cir. 2003)). In any event, Loya has abandoned any freestanding
innocence claim insofar as he does not challenge the district court’s finding
that such a claim was not cognizable on federal habeas review. See Yohey v.
Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
The district court’s judgment is AFFIRMED. Loya’s motion to
supplement the record is DENIED as unnecessary.
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