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

                                                 FILED
                                                                         November 13, 2009
                                     No. 07-51496
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

DARRYL LEE PRINCE

                                                   Petitioner-Appellant

v.

RICK THALER, 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. 5:07-CV-874




Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Petitioner-appellant Darryl Lee Prince (“Prince”), Texas prisoner #698044,
was found guilty of murder and was sentenced to 70 years in prison. He has
filed a 28 U.S.C. § 2254 petition challenging this conviction, arguing in relevant
part that trial counsel rendered ineffective assistance of counsel by not suffi-
ciently challenging the State’s scientific evidence. Prince recognizes that his



       *
           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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                        No. 07-51496

petition is not timely under 28 U.S.C. § 2244(d)(1), which provides that “[a]
1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court.” He
seeks equitable tolling to excuse the untimeliness of his petition. This court
granted a certificate of appealability on the following four issues:
              (1)     Whether a showing of actual innocence may equitably toll the
                      statute of limitations;

              (2)     If a showing of actual innocence may toll the limitations
                      period, whether Prince has made such a showing;

              (3)     Whether, in addition to showing actual innocence, a prisoner
                      must also pursue relief diligently for equitable tolling to
                      apply; and

              (4)     If diligence is required, whether Prince acted diligently.
                                      DISCUSSION
       Prince contends that the statute of limitations should be equitably tolled
because he is actually innocent.             The one-year limitations period can be
equitably tolled only in rare and exceptional circumstances. Felder v. Johnson,
204 F.3d 168, 170-71 (5th Cir. 2000). “A petitioner’s claims of actual innocence
are [not] relevant to the timeliness of the petition.” United States v. Riggs,
314 F.3d 796, 800 n.9 (5th Cir. 2002) (quoting Cousin v. Lensing, 310 F.3d 843,
849 (5th Cir. 2002)) (brackets in Riggs). There is no precedent in this circuit
whether actual innocence may equitably toll the statue of limitations.1 Because
Prince has not made a showing of actual innocence, this court does not address
the issue.
       Under the Schlup standard, to make a showing of actual innocence a
petitioner must demonstrate that it is more likely than not that no reasonable
juror would have convicted him in light of the newly presented evidence. Schlup


       1
         To date, only the Sixth Circuit has ever applied the doctrine of equitable tolling after
finding the petitioner “actually innocent.” Souter v. Jones, 395 F.3d 577 (6th Cir. 2005).

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                                       No. 07-51496

v. Delo, 513 U.S. 298, 327 (1995).2           Prince fails to meet this burden.           The
undisputed facts show that Leilah Nentwidh (“Nentwidh”), the victim, fell under
Prince’s truck. Prince alleges that Nentwidh was suicidal and leapt out of the
truck while it was moving and rolled underneath the back, right tire. The State
contends that Prince hit and ran over Nentwidh with his truck.
       The State presented several pieces of scientific evidence showing that
(1) Nentwidh was struck by the front of the vehicle while she was standing;
(2) her torso injury was “L-shaped” and corresponded almost exactly to the right-
front headlight of the truck, which was cracked; (3) a dent in the hood of the
truck was consistent with her head injury; and (4) that Prince’s story was
scientifically impossible. As to the fourth point, State experts conducted several
re-enactments using a test-dummy. They found that, absent an external force
on the victim’s body, it was physically impossible for a body, after throwing itself
out of a moving vehicle, to roll back under the same vehicle. In addition, the
State presented evidence that Prince acted violently toward Nentwidh and
attempted to dispose of evidence by having his truck power-washed and
cremating Nentwidh’s body.
       Prince’s habeas petition largely repeated factual assertions made at trial:
that Nentwidh was suicidal and that the dent on his truck was caused at
another time. He also brought forth new expert testimony stating that (1) the
State’s re-enactment testing was flawed because the test-dummy did not
perfectly approximate a human body and (2) the State pathologist’s expert
opinion that the dent in the hood was the result of the victim’s head striking the
hood was incorrect.          Even assuming that Prince’s expert testimony is
undisputably correct, Prince still fails to meet his burden under Schlup. Prince’s


       2
          While the Supreme Court has never held that actual innocence might justify
equitable tolling, the Court developed the Schlup test in other contexts. Thus, the Schlup test
would be applicable should actual innocence be found to justify equitable tolling. The Sixth
Circuit used the Schlup test when applying equitable tolling. Souter, 395 F.3d at 590, 599-
602.

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                                  No. 07-51496

expert offers no affirmative evidence or testimony that Prince’s version of events
was scientifically possible, only that the State’s scientific testing process was
imperfect. Indeed, Prince’s expert specifically could not testify as to whether it
was possible for Nentwidh’s body to roll under a truck after jumping from it.
Further, Prince offers no new evidence rebutting the State’s other scientific
experts and other circumstantial evidence. Accordingly, even with Prince’s new
expert evidence, there remains ample evidence for a reasonable juror to convict
Prince. Prince fails to meet the Schlup test.
                                CONCLUSION
      As Prince has not made a showing of actual innocence, this court does not
address whether actual innocence may equitably toll the statute of limitations
under 28 U.S.C. 2244(d)(1). Accordingly, Prince’s habeas petition is untimely
and barred by the statute of limitations. Consequently, the judgment of the
district court denying Prince habeas relief is AFFIRMED.




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