Appeals from the United States District Court for the
Southern District of Texas
HIGGINBOTHAM, SMITH, and GRAVES, Circuit Judges.
E. SMITH, CIRCUIT JUDGE
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, we affirm.
2002, a Texas jury convicted Hancock of murder, and he was
sentenced 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
rendered ineffective assistance, and that the state presented
false evidence. The TCCA denied relief without written order
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).
acknowledged that his petition was untimely but maintained
that the court could nevertheless exercise jurisdiction under
the "actual innocence" gateway of Schlup v.
Delo, 513 U.S. 298 (1995), and McQuiggin v.
Perkins, 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.
district court dismissed Hancock's petition as untimely
under § 2244(d)(1), determining that he had not
proffered new evidence or demonstrated actual innocence.
Relying on Moore, 534 F.3d at 465, the court
concluded that Hancock had not "establish[ed] that the
affidavits were unavailable to trial counsel at the time of
trial," a prerequisite to constitute new evidence.
Alternatively, the court determined that even if the
affidavits constituted 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").
timely appealed, and this court granted a COA on four issues:
1. Whether "new" evidence for the purpose of the
actual-innocence gateway of Perkins must be newly
discovered, previously unavailable evidence 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 determine that Hancock's affidavits, even if
"new," would not have prevented 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