     Case: 17-20249      Document: 00514927042         Page: 1    Date Filed: 04/23/2019




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

                                                                             FILED
                                    No. 17-20249                         April 23, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
MICHAEL TYLER,

                                                 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 Southern District of Texas
                             USDC No. 4:16-CV-2328


Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
       Michael Tyler, Texas prisoner # 1240157, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 application as untimely. Tyler alleged that
he was actually innocent of capital murder and that his actual innocence claim
served as a gateway to excuse missing the filing deadline for his claims that
trial counsel was ineffective in: (1) failing to interview and call LaShonda



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-20249

Tyler, Tiffany Morgan, and Reginald Bean as alibi witnesses; (2) failing to
investigate and adequately cross-examine Officer Vincent Larue regarding the
getaway car; and (3) failing to call Dr. Ronald P. Fisher as an expert on
eyewitness identifications.
      This court granted Tyler a certificate of appealability as to: (1) whether
the alibi witnesses’ 2014 affidavits, Dr. Fisher’s 2003 report, and State Finding
of Fact No. 20 qualified as new reliable evidence that was not presented at
trial; (2) whether the record was sufficiently developed to allow the district
court to determine whether no reasonable juror would have voted to find Tyler
guilty beyond a reasonable doubt in light of the new evidence; and (3) if the
record was sufficient, whether the district court erred in concluding that Tyler
failed to make the requisite showing. We review de novo the dismissal of
Tyler’s habeas petition as time barred. See Hancock v. Davis, 906 F.3d 387,
389 (5th Cir. 2018), petition for cert. filed (Jan. 18, 2019) (No. 18-940).
      Under the fundamental miscarriage of justice exception, a claim of actual
innocence, if proven, allows a first-time federal habeas applicant to overcome
the one-year limitations period set forth in 28 U.S.C. § 2244(d)(1). McQuiggin
v. Perkins, 569 U.S. 383, 386 (2013). “To be credible, [an actual innocence]
claim requires [the applicant] to support his allegations of constitutional error
with new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence—that was not
presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Tenable actual
innocence claims are rare because the applicant must show “that, in light of
the new evidence, no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” Perkins, 569 U.S. at 386 (internal quotation
marks and citations omitted).




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                                  No. 17-20249

      Tyler contends that evidence submitted in support of his actual
innocence gateway claim qualified as new reliable evidence that was not
presented at trial. He argues that although the information was available
prior to trial, Schlup does not require that the new evidence be “newly
discovered,” only that it be reliable and not presented at trial.
      “The Supreme Court has not explicitly defined what constitutes ‘new
reliable evidence’ under the Schlup actual-innocence standard.” Hancock, 906
F.3d at 389. Further, we have “yet to weigh in on the circuit split concerning”
whether the new evidence must be “newly discovered, previously unavailable
evidence, or, instead, evidence that was available but not presented at trial.”
Id. at 389 & n.1; see also Fratta v. Davis, 889 F.3d 225, 232 (5th Cir. 2018),
cert. denied, 139 S. Ct. 803 (2019). As in Hancock, we need not do so in the
instant case. “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.’” Hancock, 906 F.3d at 390 (quoting
Moore v. Quarterman, 534 F.3d 454, 465 (5th Cir. 2008)).
      Tyler acknowledges that the information contained in the alibi
witnesses’ 2014 affidavits, Dr. Fisher’s 2003 report, and State Finding of Fact
No. 20 was known by and available to him and trial counsel at or before trial.
Based on our decisions in Moore and Hancock, this evidence did not qualify as
new evidence for purposes of Schlup and Perkins. See Hancock, 906 F.3d at
388-90; Moore, 534 F.3d at 465.
      Tyler argues in the alternative that we should treat the new evidence
requirement for actual innocence claims differently when the claim involves
an allegation of ineffective assistance of counsel. See Gomez v. Jaimet, 350
F.3d 673, 679–80 (7th Cir. 2003) (holding that potentially exonerating evidence
that “trial counsel knew of yet failed to present” can qualify as new evidence



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                                 No. 17-20249

for a gateway ineffective assistance claim).       But Hancock involved an
ineffective assistance claim. Hancock, 906 F.3d at 387. We made no distinction
between the treatment of ineffective assistance claims and other claims when
addressing whether an actual innocence claim was sufficient to overtime a time
bar. Id. at 389–90. And while we can understand why Tyler may not have
raised an ineffective assistance claim at trial when he was still represented by
the very lawyer he sought to challenge, the same cannot be said for his habeas
proceedings. There is no indication Tyler was any less aware of the evidence
his lawyer failed to present when his sentence became final in 2007 than he
was when he filed his federal claim years later.
      Because Tyler failed to support his actual innocence gateway claim with
new reliable evidence, the district court did not err in dismissing his § 2254
application as time barred. See Perkins, 569 U.S. at 386; Hancock, 906 F.3d at
390. Accordingly, the district court’s judgment is AFFIRMED.




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