     Case: 17-10628      Document: 00514904280         Page: 1    Date Filed: 04/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                      No. 17-10628
                                                                                 FILED
                                                                              April 5, 2019
                                                                            Lyle W. Cayce
SAMSON M. LOYNACHAN,                                                             Clerk

              Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent – Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:15-CV-708


Before JONES, HO, and OLDHAM, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
       This court granted a COA in this § 2254 habeas petition “as to the
questions of whether Loynachan has ‘fairly presented’ any claims to the state
court to meet the exhaustion requirement, see Picard v. Connor, 404 U.S. 270,
275 (1971), and, if so, whether dismissal of the entire habeas application
unreasonably impaired Loynachan’s right to obtain federal relief, see Rhines v.
Weber, 544 U.S. 269, 278 (2005).” Order, Loynachan v. Davis, No. 17-10628 at


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 17-10628
*2 (5th Cir. Jan. 26, 2018). We now hold that Loynachan’s pro se response to
his lawyer’s Anders brief did not fairly present his ineffective-assistance claims
to the state court, and his claims were not exhausted. Accordingly, we do not
reach the second issue.     We thus AFFIRM the district court’s judgment
because Loynachan failed to fairly present any claims on direct appeal.
                                        I.
      A jury found Petitioner-Appellant Samson M. Loynachan guilty of
murder and assessed a life sentence. Loynachan v. State, No. 13-12-461-CR,
2013 WL 6730137, at *1 (Tex. App. –Corpus Christi Dec. 19, 2013, pet. ref’d)
(mem. Op.). On direct appeal, Loynachan’s counsel filed an Anders brief and
motion to withdraw after determining that there were no reversible errors that
could be supported by the record.       Loynachan, 2013 WL 6730137, at *1.
Loynachan filed an eighty-two-page pro se response that raised, inter alia,
three claims of ineffective assistance of trial counsel: 1) requesting that the
serious bodily injury instructions be included in the jury charge; 2) failing to
object to the erroneous felony murder charge; and 3) failing to request lesser-
included homicide offense instructions.      The intermediate appellate court
affirmed the trial court’s judgment and granted counsel’s motion to withdraw.
Loynachan, 2013 WL 6730137, at *1. The court noted Loynachan’s ineffective
assistance claims could still be raised in an application for writ of habeas
corpus—a forum better suited for such claims because it allows for
development of the factual record. Id. at *2 n.3.
      Loynachan filed a pro se petition for discretionary review (PDR) in the
Texas Court of Criminal Appeals (TCCA), again raising the three claims of
ineffective assistance of trial counsel, which the TCCA refused on June 11,
2014. Loynachan did not seek a writ of certiorari from the United States
Supreme Court and did not pursue postconviction habeas relief in state court.


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                                  No. 17-10628
        Loynachan instead filed this pro se federal habeas petition asserting ten
grounds for relief. He again alleged the three ineffective assistance of trial
counsel claims, along with due process violations and other errors by the state
court. Loynachan additionally filed a motion to stay and abate his habeas
proceedings, claiming he filed his habeas application as a protective measure
to preserve its timeliness under the one-year limitations period, but he sought
to stay those proceedings so that he could “perfect” the filing of his state habeas
writ.   The district court denied his motion to stay and abate, found that
Loynachan’s federal petition was a mixed petition that contained both
exhausted and unexhausted claims, and dismissed the petition without
prejudice for failing to exhaust state court remedies. In denying the motion to
stay and abate, the district court found that Loynachan had failed to
demonstrate good cause for his failure to exhaust his unexhausted claims. The
court characterized Loynachan’s actions as “filing frivolous and dilatory
litigation in the state courts regarding his inability to pay for and obtain a copy
of the state court records” that he claimed he wanted to prepare his state
habeas application.
        Loynachan timely appealed, and this court denied his request for a COA
in part and granted it in part. The court rejected Loynachan’s claim that the
district court should have stayed his federal habeas proceedings and held his
application in abeyance to give him an opportunity to exhaust his state
remedies.     The court granted a COA as to whether Loynachan “fairly
presented” his claims to the state court to meet the exhaustion requirement
under Picard, 404 U.S. at 275, 92 S. Ct. at 512, and, if so, whether dismissal of
the entire habeas application unreasonably impaired Loynachan’s right to
obtain federal relief under Rhines, 544 U.S. at 278, 125 S. Ct. at 1535.




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                                       No. 17-10628
                                             II.
       In a federal habeas appeal, the district court’s findings of fact are
reviewed for clear error while its conclusions of law are reviewed de novo.
Martinez v. Johnson, 255 F.3d 229, 237 (5th Cir. 2001).
                                             III.
       The first question on which this court granted a COA is whether
Loynachan exhausted his claims by fairly presenting them to the state court. 1
Where, as here, the claims are presented in a procedural context where the
state court has not necessarily assessed the merits of the ineffective assistance
claims, the petitioner has failed to exhaust his state remedies.
       A federal court may not grant habeas relief unless the petitioner “has
exhausted the remedies available in the courts of the State.”                     28 U.S.C.
§ 2254(b)(1)(A). To determine whether a § 2254 petitioner has exhausted a
claim, his federal claim should be compared with the claim he raised in state
court. Woodfox v. Cain, 609 F.3d 774, 790 (5th Cir. 2010). “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, 103 S. Ct. 276, 277 (1982) (internal citations omitted).
“Rather, the petitioner must afford the state court a ‘fair opportunity to apply
controlling legal principles to the facts bearing upon his constitutional claim.’”
Bagwell v. Dretke, 372 F.3d 748, 755 (5th Cir. 2004) (quoting Anderson,
459 U.S. at 6, 103 S. Ct. at 277). This reflects the fact in the habeas system,
state courts are provided the first opportunity to assess the claim. See Picard,
404 U.S. at 276, 92 S. Ct. at 512 (1971) (“Only if the state courts have had the



       1 The State expressly waived the exhaustion issue on appeal. We generally hold the
State to such waivers. See Carty v. Thaler, 583 F.3d 244, 256 (5th Cir. 2009). But this court
can ignore the waiver in the interest of comity. See, e.g., Earhart v. Johnson, 132 F.3d 1062,
1065–66 (5th Cir. 1998).
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                                 No. 17-10628
first opportunity to hear the claim sought to be vindicated in a federal habeas
proceeding does it make sense to speak of the exhaustion of state remedies.”).
      In order to exhaust a claim, the petitioner must present that claim to the
highest court of the state, which in Texas is the TCCA.          Richardson v.
Procunier, 762 F.2d 429, 431 (5th Cir. 1985). A petitioner has two options for
review in the TCCA: a petitioner must file either a petition for discretionary
review following a direct appeal or an application for a post-conviction writ of
habeas corpus. TEX. R. APP. PROC. 68.1; TEX. CODE OF CRIM. PROC. ART. 11.07.
A petitioner need merely press a claim through one of these avenues to exhaust
that claim.   Busby v. Dretke, 359 F.3d 708, 723 (5th Cir. 2004) (“Habeas
petitioners must exhaust state remedies by pursuing their claims through one
complete cycle of either state direct appeal or post-conviction collateral
proceedings.”); Bledsue v. Johnson, 188 F.3d 250, 254 n.8 (5th Cir. 1999) (“[A]t
no time have we suggested that pursuing relief in the Court of Criminal
Appeals in both a petition for discretionary review and in an application for a
writ of habeas corpus is necessary to satisfy the exhaustion requirement.”).
      To exhaust a claim, it must also be presented in a procedural context in
which state courts necessarily review the claim on the merits. See Castille v.
Peoples, 489 U.S. 346, 351, 109 S. Ct. 1056, 1060 (1989). Review of Anders
briefs normally satisfies this requirement because “courts of appeals must
decide whether the Anders appeal and subsequent pro se brief raise any
meritorious ‘arguable grounds’ for review.” Garner v. State, 300 S.W.3d 763,
767 (Tex. Crim. App. 2009) (citing Bledsoe v. State, 178 S.W.3d 824, 826–27
(Tex. Crim. App. 2005)). Thus, in the Anders context, this court has held that
claims presented in pro se pleadings and analyzed on the merits by both the
intermediate appellate court and the TCCA are fairly presented and so
exhausted. Johnson v. Quarterman, 479 F.3d 358, 360 (5th Cir. 2007); see also
Myers v. Collins, 919 F.2d 1074, 1075–76 (5th Cir. 1990).
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                                  No. 17-10628
      But this is not the case where the state court has not necessarily
analyzed the ineffective assistance claims on the merits, indicating that this is
because they are best pursued in federal habeas.            In the case underlying
Johnson v. Quarterman, the state court addressed the merits of the claims, see
Johnson v. State, No. 05-99-01379-CR, 2001 WL 371918, at *1–3 (Tex. App.–
Dallas Apr. 16, 2001, pet. ref’d), while here the court simply granted the Anders
motion after reviewing the materials, see Loynachan, 2013 WL 6730137, at *2.
The state court noted that federal habeas, rather than direct appeal, is a better
forum for ineffective assistance claims because such claims often “require[e]
the development of a record.” Id. at *2, n.3. Thus, the court noted that it is
not unusual that such claims “are generally not successful on direct appeal and
are more appropriately urged in a hearing on an application for a writ of
habeas corpus.” Id. (citing Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim.
App. 2011)).
      The state court opinion thus indicates that the court did not necessarily
analyze the claims on the merits, precisely because state court review of Anders
briefs are not a context where the court necessarily reviews ineffective-
assistance claim on the merits. The state court rightly recognized the difficulty
in assessing ineffective-assistance claims on direct appeal, which is why
“[u]nlike other claims rejected on direct appeal, claims of ineffective assistance
of counsel rejected due to lack of adequate information may be reconsidered on
an application for a writ of habeas corpus.” Lopez, 343 S.W.3d at 143. Because
of the unique interaction between ineffective-assistance claims on direct
review, and Anders briefs, the state court did not necessarily address the
claims on the merits. Thus, the presentation of the claims in that procedural
context did not constitute a fair presentation.
      It is true that a petitioner may exhaust his claims even where the “state
appellate court chooses to ignore in its opinion a fairly presented federal
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                                  No. 17-10628
constitutional claim squarely raised in petitioner’s brief in the state court.”
Castille, 489 U.S. at 351, 109 S. Ct. at 1060 (citing Smith v. Digmon, 434 U.S.
332, 333, 98 S. Ct. 597, 599 (1978) (per curiam)). But a pro se response to an
Anders brief is not the same thing as square presentation in a petitioner’s brief.
In the scenario envisioned by Castille, the claim has been fairly presented, even
if ignored, and so it would be “fair to assume that further state proceedings
would be useless.” Id. But “[s]uch an assumption is not appropriate, however–
and the inference of an exception to the requirement of § 2254(c) is therefore
not justified–where the claim has been presented for the first and only time in
a procedural context in which its merits will not be considered.” Id. Thus, in
Castille, the petitioner’s presentation of his claims in petitions for allocator,
reviewed only where “‘there are special and important reasons therefor,’
Pa.Rule App.Proc. 1114 . . . does not, for the relevant purpose, constitute ‘fair
presentation.’” Id. Similarly, where the TCCA has refused the PDR, and the
ineffective-assistance claims are presented in a pro se response to counsel’s
Anders brief, and the state court has not necessarily addressed the claims on
the merits, those claims are not fairly presented, and thus not exhausted, for
purposes of federal habeas.
         That being so, Loynachan’s petition was not a mixed petition, but an
entirely unexhausted petition, and the district court appropriately dismissed
it. Because we hold that Loynachan has not fairly presented his claims to the
state court, we do not reach the second question of whether dismissal of the
entire habeas application unreasonably impaired Loynachan’s right to obtain
federal relief.
                                       IV.
         For the foregoing reasons, we thus AFFIRM the judgment of the district
court.


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