    Case: 16-20662    Document: 00514694440    Page: 1   Date Filed: 10/23/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 16-20662                United States Court of Appeals
                                                                     Fifth Circuit

                                                                   FILED
                                                            October 23, 2018
                                                              Lyle W. Cayce
JAMAL MARTINEZ HANCOCK,                                            Clerk


                                          Petitioner–Appellant,

versus

LORIE DAVIS, Director,
 Texas Department of Criminal Justice, Correctional Institutions Division,

                                          Respondent–Appellee.




                Appeals from the United States District Court
                     for the Southern District of Texas




Before HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Jamal Hancock was convicted of murder. The district court dismissed
his petition for federal habeas corpus relief as untimely. Because Hancock has
not presented new evidence of actual innocence under Moore v. Quarterman,
534 F.3d 454 (5th Cir. 2008), he has not made the showing necessary for this
court to consider his claims despite the expired limitations period. Therefore,
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                                  No. 16-20662
we affirm.

                                        I.
      In 2002, a Texas jury convicted Hancock of murder, and he was sen-
tenced to ninety-nine years’ imprisonment. On direct appeal, in 2004, the state
court of appeals affirmed, and Hancock did not seek discretionary review with
the Texas Court of Criminal Appeals (“TCCA”). In 2014, Hancock filed a state
postconviction application, asserting that he suffered a due process violation
based on a biased in-court identification procedure, that his trial counsel ren-
dered ineffective assistance, and that the state presented false evidence. The
TCCA denied relief without written order in 2015.

      Hancock filed a federal habeas corpus petition under 28 U.S.C. § 2254,
raising the same claims (of ineffective assistance of counsel and an impermis-
sibly suggestive in-court identification process) that he had presented in the
state court. That petition was untimely. Hancock had one year from the date
his state court judgment became final, in 2004, to file a federal habeas petition.
28 U.S.C. § 2244(d)(1).

      Hancock acknowledged that his petition was untimely but maintained
that the court could nevertheless exercise jurisdiction under the “actual inno-
cence” gateway of Schlup v. Delo, 513 U.S. 298 (1995), and McQuiggin v. Per-
kins, 569 U.S. 383 (2013). Hancock attached to his habeas petition affidavits
obtained by law enforcement, close to the date of the murder, from four state
witnesses that, he alleges, contradict their trial testimony regarding the
shooter’s physical description.

      The district court dismissed Hancock’s petition as untimely under
§ 2244(d)(1), determining that he had not proffered new evidence or demon-
strated actual innocence.     Relying on Moore, 534 F.3d at 465, the court

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                                  No. 16-20662
concluded that Hancock had not “establish[ed] that the affidavits were un-
available to trial counsel at the time of trial,” a prerequisite to constitute new
evidence. Alternatively, the court determined that even if the affidavits con-
stituted new evidence, Hancock had failed to establish that “no reasonable
juror would have found [him] guilty beyond a reasonable doubt,” Schlup,
513 U.S. at 327, because the jury was already presented with differing,
impeached descriptions of the shooter. The district court therefore denied
Hancock a certificate of appealability (“COA”).

      Hancock timely appealed, and this court granted a COA on four issues:

     1. Whether “new” evidence for the purpose of the actual-innocence gate-
        way of Perkins must be newly discovered, previously unavailable evi-
        dence or if, instead, it includes reliable evidence that was available but
        not presented at trial, see Wright v. Quarterman, 470 F.3d 581, 591
        (5th Cir. 2006);

     2. Whether the record was sufficient to permit the district court to deter-
        mine that Hancock’s affidavits, even if “new,” would not have pre-
        vented a reasonable juror from voting for guilt beyond a reasonable
        doubt;

     3. Whether, if the record is sufficient, the district court was correct in its
        determination that a reasonable juror still could have found Hancock
        guilty in light of the affidavits, see Perkins, 569 U.S. at 386–87; and

     4. Whether Hancock’s delay in presenting his claims based on the new
        affidavits had any effect on his allegations of actual innocence, see
        Perkins, 569 U.S. at 398–400.
We review de novo the denial of a habeas petition on procedural grounds.
Thomas v. Goodwin, 786 F.3d 395, 397 (5th Cir. 2015).

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                                       No. 16-20662
                                              II.
       Hancock claims that despite the expiration of § 2244(d)(1)’s limitations
period, the district court should be able to exercise jurisdiction over his claims
because he is alleging actual innocence. In Perkins, 569 U.S. at 386, the Court
held that “actual innocence, if proved, serves as a gateway through which a
petitioner may pass [even if] the impediment is a procedural bar . . . or . . .
expiration of the statute of limitations.” As a threshold matter, a credible gate-
way “claim [of actual innocence] requires [the] petitioner to support his allega-
tions of constitutional error with new reliable evidence . . . that was not pre-
sented at trial.” Schlup, 513 U.S. at 324. “[T]enable actual-innocence gateway
pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence, no juror, act-
ing reasonably, would have voted to find him guilty beyond a reasonable
doubt.’” Perkins, 569 U.S. at 386 (quoting Schlup, 513 U.S. at 329).

       The Supreme Court has not explicitly defined what constitutes “new
reliable evidence” under the Schlup actual-innocence standard, and there is a
circuit split. 1 “This court has yet to weigh in on the circuit split concerning
what constitutes ‘new’ evidence.” Fratta v. Davis, 889 F.3d 225, 232 (5th Cir.
2018). Nor does this case require us to do so, because Moore squarely answers


       1 See Wright, 470 F.3d at 591 (collecting cases). The disagreement centers on whether
“new reliable evidence” for the purpose of the Schlup actual innocence gateway must be newly
discovered, previously unavailable evidence, or, instead, evidence that was available but not
presented at trial. Compare Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005) (holding
that evidence is “new” only if it was unavailable at trial and could not have been discovered
earlier through due diligence), and Amrine v. Bowersox, 238 F.3d 1023, 1028 (8th Cir. 2001)
(same), with Riva v. Ficco, 803 F.3d 77, 84 (1st Cir. 2015) (considering newly presented evi-
dence “of opinions from a psychiatric expert that [petitioner] recently retained”), Rivas v.
Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (finding that “new evidence” is “evidence not heard
by the jury”), Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (“All Schlup requires is that
the new evidence is reliable and that it was not presented at trial.”), and Griffin v. Johnson,
350 F.3d 956, 963 (9th Cir. 2003) (holding that “habeas petitioners may pass Schlup’s test by
offering ‘newly presented’ evidence of actual innocence”).
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                                  No. 16-20662
that the four affidavits Hancock presents do not constitute “new” evidence
under Schlup.

      Evidence does not qualify as “new” under the Schlup actual-innocence
standard if “it was always within the reach of [petitioner’s] personal knowledge
or reasonable investigation.” Moore, 534 F.3d at 465. Consequently, though
we have not decided what affirmatively constitutes “new” evidence, we have
explained what does not.

      Hancock supported his claim of actual innocence with affidavits, ob-
tained close to the date of the murder, from four state witnesses who testified
at trial. The district court determined that Hancock did not establish that the
affidavits were unavailable to counsel at the time of trial, and therefore the
court held that Hancock had offered no “new” evidence. Hancock did not con-
tend in the district court, and does not contend in this appeal, that the affi-
davits were unavailable to him or trial counsel at or before trial. Moore thus
prohibits Hancock from supporting his actual-innocence gateway claim with
the proffered affidavits as “new” evidence, so he is unable to overcome
§ 2244(d)(1)’s limitations bar.

      Accordingly, the district court correctly interpreted and applied Moore.
The dismissal of Hancock’s federal habeas corpus petition as barred by
28 U.S.C. § 2244(d)(1)’s limitations period is AFFIRMED.




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