# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 10332 Summary Calendar

**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* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under th e limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 1, 2021
Lyle W. Cayce Clerk Case: 20-10332 Document: 00516001066 Page: 1 Date Filed: 09/01/2021No. 20

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2 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
eviden ce that he contended supported his claim. The district court dismissed Loya’s application on the ground s that the military courts had fully and fairly
considered his claim s and that any freestanding claim of actual innocence was not cognizable as an indep endent 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 conviction s should be allowed to

st and in light of his allegation of bribery and coercion of the victim to testify falsely against him

. Loya contends that his conviction s violated his Fifth and Fourteenth Amendment due process rights, his Fifth Amendment right to an indictment by a grand j ury, and his Sixth Amendment right s 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 matte rs open for review, has always been more narrow
than in civil cases.” Id. Review of a military conviction is appropriate only
whe re, inter alia , “the claim of error is one of constitutional significance, or
so fundamental as to have resulted in a miscarr iage of justice.” Calley

v. C a ll a way , 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 allegation s raise a claim of “ constitutiona l significance. ” Id. Case: 20-10332 Document: 00516001066 Page: 2 Date Filed: 09/01/2021No. 20

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3 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 us ed 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 (19 7 2); 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 j ury 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 faile d 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
ha s.” 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 fe deral habeas review; a n allegation of actual innocence does not by itself establish a constitutional violation. See In re Swearingen , 556 F.3d Case: 20-10332 Document: 00516001066 Page: 3 Date Filed: 09/01/2021No. 20

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4 344, 348 (5th Cir. 2009) (per curiam) (citing Graves v. Cockrell , 351 F.3d 143, 151 (5th Cir. 2003))

. In any ev ent , 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

**.** Case: 20-10332 Document: 00516001066 Page: 4 Date Filed: 09/01/2021