     Case: 18-31170      Document: 00515336605         Page: 1    Date Filed: 03/09/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                      No. 18-31170
                                                                                 Fifth Circuit

                                                                               FILED
                                                                           March 9, 2020

PATRICK DEWAYNE DYAS,                                                     Lyle W. Cayce
                                                                               Clerk
                                                 Petitioner-Appellant

v.

KEITH DEVILLE, WARDEN, WINN CORRECTIONAL CENTER,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:17-CV-1494


Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM: *
       Patrick Dewayne Dyas, Louisiana prisoner # 450973, was convicted by a
jury in 2008 of obstruction of justice and was sentenced as a second felony
offender to 40 years of imprisonment. He seeks a certificate of appealability
(COA) to appeal the denial of his application for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 as time barred.
       The Supreme Court has held that actual innocence, if proven, serves as
a gateway through which a prisoner may raise § 2254 claims despite expiration


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-31170

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.’” McQuiggin, 569 U.S. at 386 (quoting
Schlup v. Delo, 513 U.S. 298, 329 (1995)).
      Dyas argues that he is actually innocent of the crime of obstruction of
justice and should not be precluded from raising his claims by the statute of
limitations.   He relies upon the actual innocence gateway approved by
McQuiggin to overcome the time bar. The federal claims that Dyas seeks to
raise are dependent on the state’s interpretation of its own law of obstruction
of justice. “Under § 2254, federal habeas courts sit to review state court
misapplications of federal law. A federal court lacks authority to rule that a
state court incorrectly interpreted its own law.” Charles v. Thaler, 629 F.3d
494, 500-01 (5th Cir. 2011) (italics in original).
      Because Dyas 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.
      Finally, Dyas contends that the district court erred by denying his § 2254
application without conducting an evidentiary hearing. He is not required to
obtain a COA to appeal the denial of an evidentiary hearing; therefore, to the
extent he seeks a COA on this issue we construe his COA request “as a direct
appeal from the denial of an evidentiary hearing.” Norman v. Stephens, 817
F.3d 226, 234 (5th Cir. 2016). Dyas did not file a motion or make a request for
an evidentiary hearing in the district court, nor did he complain of the lack of
a hearing. Because Dyas’s argument concerning the lack of an evidentiary



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                                 No. 18-31170

hearing is raised for the first time on appeal, we will not consider it. See
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999); see also
Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Discount Centers, Inc., 200
F.3d 307, 316-17 (5th Cir. 2000) (“It is a bedrock principle of appellate review
that claims raised for the first time on appeal will not be considered.”). The
district court’s judgment is AFFIRMED in part as to the lack of an evidentiary
hearing.




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