     Case: 19-50290      Document: 00515381336         Page: 1    Date Filed: 04/14/2020




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

                                                                                 FILED
                                      No. 19-50290                           April 14, 2020
                                                                            Lyle W. Cayce
HECTOR DAVID SANCHEZ,                                                            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. 5:19-CV-59


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Hector David Sanchez, Texas prisoner # 02093641, pleaded guilty to one
count of sexual assault of a child and one count of indecency with a child by
contact; he was sentenced on June 7, 2016 to concurrent terms of 20 years of
imprisonment. He seeks a certificate of appealability (COA) to appeal the
denial as time barred of his 28 U.S.C. § 2254 application.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-50290    Document: 00515381336     Page: 2   Date Filed: 04/14/2020


                                 No. 19-50290

      The Supreme Court has 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). McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013). However, the Court reiterated that tenable
actual innocence claims are rare because the applicant “does not meet the
threshold requirement unless he persuades the district court that, in light of
the new evidence, no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298,
329 (1995)).
      Sanchez argues that he is actually innocent and should not be precluded
by the statute of limitations from raising his claim of ineffective assistance of
counsel. He relies upon the actual innocence gateway approved by McQuiggin
to overcome the time bar. Because Sanchez has not shown “that jurists of
reason would find it debatable whether the district court was correct in its
procedural ruling,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), his motion for
a COA is denied.
      We construe his motion for a COA with respect to the district court’s
denial of an evidentiary hearing as a direct appeal of that issue. See Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016). Sanchez fails to demonstrate
the existence of any disputed facts that, if resolved in his favor, would have
entitled him to habeas relief; therefore, the district court did not abuse its
discretion in not conducting an evidentiary hearing. See id. at 235.
      Sanchez’s motions for leave to proceed in forma pauperis (IFP) on appeal
and to stay these proceedings are denied.
      COA DENIED; AFFIRMED; IFP DENIED; MOTION TO STAY
DENIED.




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