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Hancock v. Davis

United States Court of Appeals, Fifth Circuit

October 23, 2018

JAMAL MARTINEZ HANCOCK, Petitioner-Appellant,
v.
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, we affirm.

         I.

         In 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 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 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.

         The 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").

         Hancock 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 actual ...

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