     Case: 17-50914      Document: 00515031608         Page: 1    Date Filed: 07/12/2019




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


                                      No. 17-50914                           FILED
                                                                         July 12, 2019
                                                                        Lyle W. Cayce
BRUCE RANDOL MERRYMAN,                                                       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 Western District of Texas
                             USDC No. 5:17-CV-311


Before KING, ELROD, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Bruce Randol Merryman (“Merryman”) appeals the district court’s
dismissal of his 28 U.S.C. § 2254 (“§ 2254”) petition as time-barred. We granted
a certificate of appealability (“COA”) solely as to the issue of whether, in view
of the holding of the Texas Court of Criminal of Appeals (“TCCA”) in Berry v.
State, 424 S.W.3d 579 (Tex. Crim. App. 2014), regarding the meaning of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50914
“fiduciary” in one of Merryman’s statutes of conviction, the district court erred
in determining that Merryman had not established a gateway claim of actual
innocence. For the reasons stated below, we AFFIRM the district court’s
ruling.
                                               I.
        As a preliminary matter, we address Merryman’s “motion” for “new
evidence.”     We note, however, that Merryman’s motion is in actuality an
attempt to file a supplemental brief based, in part, on Ex parte Dawson, 509
S.W.3d 294 (Tex. Crim. App. 2016), and, in part, on his desire to further
express his concerns over the fairness of his trial and point out injustices in
the Texas Department of Criminal Justice with respect to challenging one’s
conviction. 1 The contents of Merryman’s attempted supplemental brief go
beyond the scope of the issue on which the COA was granted. Therefore, this
court lacks jurisdiction to consider it. See Simmons v. Epps, 654 F.3d 526, 535
(5th Cir. 2011). Further, to the extent Merryman is seeking to raise a claim of
infirmity in his own state habeas proceedings, that is not a basis for federal
habeas relief.      See Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004).
Accordingly, his motion is DENIED.
                                              II.
       Having addressed Merryman’s pending motion, we proceed to his appeal.
Merryman was indicted on three counts of theft by deception and three counts
of misapplication of fiduciary property in violation of Texas statutory law. See
Merryman v. State, 391 S.W.3d 261, 264 (Tex. App.—San Antonio 2012, pet.
ref’d). The criminal charges concerned Merryman’s conduct with respect to


       1In Dawson, one justice of the TCCA filed a concurring opinion expressing the view
that the TCCA should change its practice of allowing habeas petitions to be decided “by a
lone judge rather than by all judges or a panel of the judges elected to [the TCCA].” 509
S.W.3d at 297–98 (Alcala, J., concurring). Merryman contends that Dawson shows that
habeas petitioners in Texas “are not getting a fair chance to get their cases heard by T.C.C.A.”
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several construction projects he undertook as a general contractor. See id.
According to the state appellate court’s account, Merryman “obtained a series
of advance payments from the customers before failing to complete each
project.” Id. The State’s position was that “he never intended to finish the jobs
and acted pursuant to a scheme to misappropriate the customers’ money.” Id.
The case proceeded to trial before a jury, which returned guilty verdicts on all
six counts. Id. at 268. Merryman received concurrent sentences ranging from
two years of imprisonment to sixteen years of imprisonment and was ordered
to pay restitution. Id.
      The Court of Appeals of Texas in San Antonio affirmed the trial court’s
judgments, rejecting, inter alia, Merryman’s contention that there was
insufficient evidence to establish that he held his customers’ property—here
money—as a fiduciary, as required to support his conviction for misapplication
of fiduciary property. Id. at 269-70. The court determined that evidence that
Merryman entered into agreements with his customers “as to [the] particular
course of action” of completing construction projects, along with testimony that
Merryman’s customers entrusted funds to him to be used to complete their
construction projects, was sufficient to establish that Merryman acted in a
fiduciary capacity. Id. at 270. In reaching its conclusion, the court dismissed
Merryman’s argument that he could not have acted in a fiduciary capacity
since the construction contracts at issue were intended to mutually benefit and
imposed obligations on both parties. Id.
      Merryman’s petition for discretionary review was refused by the TCCA
on April 24, 2013. On or about August 20, 2014, Merryman applied for state
post-conviction relief. On December 10, 2014, the TCCA denied relief without
written order on the findings of the trial court and without a hearing. On or
about June 15, 2015, Merryman filed a second state post-conviction


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application. The TCCA dismissed the filing as a subsequent application by
order dated March 22, 2017.
      Merryman filed his pro se § 2254 petition on April 5, 2017, the date he
verified he placed it in the prison mail system. See Houston v. Lack, 487 U.S.
266, 276 (1988). He claimed, among other things, that there was no evidence
that he held property as a fiduciary; that he was actually innocent of all three
counts of misapplication of fiduciary property; that he had been denied the
right to present a defense through his testimony; and that his trial counsel had
been ineffective in various respects. The magistrate judge (“MJ”) ordered
Merryman to show cause why his § 2254 petition should not be dismissed as
time-barred.
      Merryman responded to the MJ’s order with a lengthy filing in which he
asserted, as relevant here, that he was actually innocent. The Respondent—
Lorie Davis, Director of the Texas Department of Criminal Justice,
Correctional Institutions Division (“Respondent”)—answered the petition and
argued that Merryman’s § 2254 petition was time-barred; that Merryman had
not established his actual innocence; and that he was not entitled to equitable
tolling. Merryman replied that his actual innocence was established by various
documents pertaining to the construction projects he performed and, more
importantly for our purposes, by a change in state law established by the TCCA
in Berry v. State, 424 S.W.3d 579 (Tex. Crim. App. 2014).
      The district court dismissed the § 2254 petition as time-barred. The
court determined that the one-year limitations period had expired before
Merryman filed his first state habeas application and that Merryman was not
entitled to equitable tolling.     The court further determined that the
untimeliness of the § 2254 petition should not be excused on account of
Merryman’s assertion of actual innocence. In this regard, the court noted only
that the records relied on by Merryman in support of his actual innocence claim
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concerned his own business dealings and therefore did not satisfy the requisite
of newly discovered evidence.        The district court denied Merryman’s
subsequent motion to amend or alter judgment under Federal Rule of Civil
Procedure 59(e) and further denied a COA. Merryman timely appealed. As
noted above, this court granted a COA, but only as to the issue of “whether, in
view of Berry, the district court erred in determining that Merryman had not
established a gateway claim of actual innocence.”
                                       III.
      On appeal from the denial of a § 2254 petition, we review a district court's
findings of fact for clear error and conclusions of law de novo. McCall v. Dretke,
390 F.3d 358, 362 (5th Cir. 2004). We apply the same standard of review to
the state court’s decision. Id. Pursuant to the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), a prisoner has one year from the latest of
several events to file a § 2254 petition. See 28 U.S.C. § 2244(d)(1)(A)-(D).
Narrowing our view to the issue on which the COA was granted, we will
assume that the district court correctly determined that Merryman’s § 2254
petition was untimely and consider only whether the district court erred in
determining that Merryman did not establish a gateway claim of actual
innocence that would excuse the untimeliness of his petition.
                                       IV.
                                       A.
      A freestanding claim of actual innocence is not cognizable on federal
habeas review. See Kinsel v. Cain, 647 F.3d 265, 270 n.20 (5th Cir. 2011) (citing
Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)). However, in McQuiggin
v. Perkins, 569 U.S. 383, 386-87 (2013), the Supreme Court held that actual
innocence, if proven, serves as a gateway through which a prisoner may raise
§ 2254 claims despite expiration of the applicable limitations period under 28
U.S.C. § 2244(d).    The actual innocence gateway, first recognized by the
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                                  No. 17-50914
Supreme Court in other contexts, is intended to avoid “fundamental
miscarriage[s] of justice” and “is grounded on the equitable discretion of habeas
courts to see that federal constitutional errors do not result in the incarceration
of innocent persons.”     Id. at 392 (internal quotation marks and citation
omitted).
      Nevertheless, “tenable actual-innocence gateway pleas are rare.” Id. at
386. “To invoke the miscarriage of justice exception to AEDPA’s statute of
limitations . . . a petitioner ‘must show that it is more likely than not that no
reasonable juror would have convicted him in the light of . . . new evidence.’”
Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).          The “new
evidence” must be “reliable evidence,” such as “exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513
U.S. at 324. The Supreme Court has explained that “[t]he gateway should open
only when a petition presents ‘evidence of innocence so strong that a court
cannot have confidence in the outcome of the trial unless the court is also
satisfied that the trial was free of nonharmless constitutional error.’” Perkins,
569 U.S. at 401 (quoting Schlup, 513 U.S. at 316).
                                        B.
      On appeal, Merryman, proceeding pro se, continues to assert that he is
actually innocent of the three convictions of misapplication of fiduciary
property because, given the TCCA’s holding in Berry regarding the definition
of “fiduciary,” there was no evidence that he acted in a fiduciary capacity.
Respondent argues that the Berry decision does not constitute “evidence” that
can support a gateway claim of actual innocence; that even if Berry is
“evidence,” it isn’t new evidence because it was available to Merryman to raise
in his first state habeas application; and that, to the extent the decision in
Berry can be “evidence,” it is not evidence of Merryman’s actual innocence
because Merryman’s case is factually distinguishable from Berry. As to the
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last point, Respondent argues that the contracts that underlie Merryman’s
convictions go beyond ordinary business relationships or ordinary business
dealings, such as the ones in Berry, because they are construction contracts
and impose a high standard of care with respect to handling customer
payments.
                                        C.
      Under Texas law, a person commits the offense of misapplication of
fiduciary property, in violation of Texas Penal Code § 32.45(b), “if he
intentionally, knowingly, or recklessly misapplies property he holds as a
fiduciary . . . in a manner that involves substantial risk of loss to the owner of
the property or to a person for whose benefit the property is held.” Texas Penal
Code § 32.45(b); see also Ronk v. State, 250 S.W.3d 467, 470 (Tex. App.—Waco
2008, pet. ref’d.). In Berry, a case decided after Merryman’s direct appeal had
concluded, the TCCA interpreted § 32.45(b) and explained what it means to act
as a fiduciary for purposes of that statute. See 424 S.W.3d at 580. The TCCA
determined that acting in a fiduciary capacity “encompasses only special
relationships of confidence or trust in which one party is obligated to act
primarily for the benefit of the other.” Id. More specifically, the TCCA held
that “one acts in a ‘fiduciary capacity’ for purposes of the misapplication statute
if his relationship with another is based not only on trust, confidence, good
faith, and utmost fair dealing, but also on a justifiable expectation that he will
place the interests of the other party before his own.” Id. at 585. The TCCA
explained that “[t]o impose a fiduciary relationship in ordinary business
dealings would run contrary to the principle that a fiduciary is obligated to act
for the primary benefit of the other party.” Id. at 584. Considering these
definitions, the TCCA determined in Berry that the evidence was insufficient
to show that the defendant—a seller and installer of drapes and blinds—was a
fiduciary because he “had no special or confidential relationship with his
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                                 No. 17-50914
customers beyond the usual contractual relationship that exists between any
seller and a buyer of goods.” Id. at 586.
                                       D.
      Initially, we point out that in Perkins, the Supreme Court stressed the
need to prove a gateway claim of actual innocence through new and reliable
evidence. See 569 U.S. at 386-87, 399, 401. The Berry decision clearly does not
constitute evidence under the traditional sense of the word. Merryman urges,
however, that Berry constitutes a change in state law post-conviction that
allows his actual innocence gateway claim to succeed, since he could not have
been convicted of misappropriating fiduciary property under the “new” law set
forth in Berry. This court has not addressed whether a subsequent change in
state law can be the foundation for a gateway actual innocence claim. Cases
decided by other appellate courts and even recent Supreme Court
jurisprudence suggest that a post-conviction change in the state law on which
the conviction was based could be a sufficient basis for a gateway actual
innocence claim. See Bousley v. United States, 523 U.S. 614 (1998); Phillips v.
United States, 734 F.3d 573 (6th Cir. 2013); Vosgien v. Persson, 742 F.3d 1131
(9th Cir. 2014). However, given that Merryman has not established a change
in state law, we need not and expressly do not reach that question here.
      In Merryman’s direct appeal, the Court of Appeals of Texas in San
Antonio, relying on prior caselaw, stated:
      [A] person acts in a fiduciary capacity within the context of section
      32.45 when the business which he transacts, or the money or
      property which he handles, is not his or for his own benefit, but for
      the benefit of another person as to whom he stands in a relation
      implying and necessitating great confidence and trust on the one
      part and a high degree of good faith on the other part.

Merryman, 391 S.W.3d at 269 (internal quotation marks and citations
omitted).

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      In Berry, the TCCA recognized that the appellate court—the same one
that considered Merryman’s appeal—used the definition of “fiduciary” cited
above in its analysis. 424 S.W.3d at 581. The TCCA then endorsed this
interpretation. Id. at 583, 585. Specifically, the court noted that “the court of
appeals cited the correct definition of ‘fiduciary’ in assessing the sufficiency of
the evidence to sustain [the] appellant’s conviction.” Id. at 586. However, the
TCCA found that the court of appeals had erred “in its application of that
definition to the facts of [the] case.”       Id. (emphasis added).    Thus, Berry
expressly did not change the law regarding misapplication of fiduciary
property; and at most, with respect to Merryman’s case, Berry demonstrates a
misapplication by the state court of appeals of the law to the facts of
Merryman’s case. That is an insufficient basis for federal habeas relief. See
Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011) (“A federal court lacks
authority to rule that a state court incorrectly interpreted its own law.”).
                                        V.
      In light of the foregoing, Merryman has not established a gateway claim
of actual innocence. The ruling of the district court is, therefore, AFFIRMED.




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