United States District Court, E.D. Texas
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
A. CRONE UNITED STATES DISTRICT JUDGE.
Dywan Shenille Brooks, an inmate confined at the LeBlanc
Unit, proceeding pro se, brought this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
court referred this matter to the Honorable Zack Hawthorn,
United States Magistrate Judge, at Beaumont, Texas, for
consideration pursuant to applicable laws and orders of this
court. The magistrate judge recommends that the petition be
dismissed as barred by limitations.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record, pleadings and all available evidence. Petitioner
filed objections to the magistrate judge's Report and
court has conducted a de novo review of the
objections in relation to the pleadings and the applicable
law. See Fed. R. Civ. P. 72(b). After careful
consideration, the court concludes Petitioner's
objections are without merit.
objections, petitioner asserts he is actually innocent of the
offense. In McQuiggin v. Perkins, 569 U.S. 383, 386
(2013), the Supreme Court resolved a split among circuit
courts by holding that a habeas petitioner can overcome the
expiration of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”) statute of limitations by making a
convincing showing of actual innocence. McQuiggin,
569 U.S. at 386 (referencing 28 U.S.C. § 2244(d)(1)).
The Court held that “actual innocence, if proved,
serves as a gateway through which a petitioner may pass
whether the impediment is a procedural bar ... or ...
expiration of the statute of limitations.” Id.
However, to utilize the court-created gateway, a petitioner
is required to produce new evidence sufficient to persuade
the district court that “no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable
doubt” when attempting to overcome the expiration of
the AEDPA statute of limitations by showing actual innocence.
McQuiggin, 133 S.Ct. at 1928 (quoting Schlup v.
Delo, 513 U.S. 298, 329, 115 S.Ct. 851 (1995)).
McQuiggin also held that an unjustifiable delay on
the part of a habeas petitioner, while not to be counted as
“an absolute barrier to relief, ” should still be
considered as a “factor in determining whether actual
innocence has been reliably shown.” Id.
petitioner does not rely on newly discovered evidence, nor
does he explain his unjustifiable delay. The evidence on
which petitioner relies was known or reasonably could have
been discovered at the time of his conviction. Further, it is
noted that petitioner has not explained the delay in this
case after his conviction became final before he filed this
petition. Accordingly, the petition should be dismissed as
barred by limitations.
in support of his assertion of innocence, petitioner asserts
he has new evidence obtained from a suppression hearing
conducted on July 6, 2015. In essence, petitioner wants this
Court to the review the evidence and trial court proceedings
and reach a different conclusion than the trier of fact.
However, federal habeas courts are not an alternative forum
for trying facts and issues which were insufficiently
developed in state proceedings. Williams v. Taylor,
529 U.S. 420, 437 (2000). Federal habeas review under
2254(d)(1) “is limited to the record that was before
the state court that adjudicated the claim on the
merits.” Cullen v. Pinholster, 563 U.S. 170,
forth above, petitioner has not presented new evidence
supporting his claim of actual innocence. The evidence
presented was from a suppression hearing conducted before his
conviction. Thus, the evidence could have been discovered
with due diligence prior to filing his appeal or state habeas
petition. However, even if this Court were to consider his
claims, “the existence merely of newly discovered
evidence relevant to the guilt of a state prisoner is not a
ground for relief on federal habeas corpus.” Boyd
v. Puckett, 905 F.2d 895, 896-97 (5th Cir.), cert.
denied, 498 U.S. 988 (1990). Additionally, after
reviewing the evidence, petitioner has failed to set forth a
truly persuasive showing of actual innocence and his claims
do not satisfy the extraordinarily high threshold for a
potential actual innocence claim. See Herrera v.
Collins, 506 U.S. 390, 417 (1993). Accordingly,
petitioner's objections are without merit.
petitioner has failed to show either that the state court
adjudication was contrary to, or involved an unreasonable
application of, clearly established federal law, as
determined by the Supreme Court of the United States or that
the state court adjudication resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented in the state court proceeding.
Therefore, petitioner's objections should be overruled.
the petitioner is not entitled to the issuance of a
certificate of appealability. An appeal from a judgment
denying federal habeas corpus relief may not proceed unless a
judge issues a certificate of appealability. See 28
U.S.C. § 2253; Fed. R. App. P. 22(b). The standard for
granting a certificate of appealability, like that for
granting a certificate of probable cause to appeal under
prior law, requires the petitioner to make a substantial
showing of the denial of a federal constitutional right.
See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir.
2004); see also Barefoot v. Estelle, 463 U.S. 880,
893 (1982). In making that substantial showing, the
petitioner need not establish that he should prevail on the
merits. Rather, he must demonstrate that the issues are
subject to debate among jurists of reason, that a court could
resolve the issues in a different manner, or that the
questions presented are worthy of encouragement to proceed
further. See Slack, 529 U.S. at 483-84. Any doubt
regarding whether to grant a certificate of appealability is
resolved in favor of the petitioner, and the severity of the
penalty may be considered in making this determination.
See Miller v. Johnson, 200 F.3d 274, 280-81 (5th
Cir.), cert. denied, 531 U.S. 849 (2000).
the petitioner has not shown that any of the issues raised by
his claims are subject to debate among jurists of reason. The
factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to
his position. In addition, the questions presented are not
worthy of encouragement to proceed further. Thus, the
petitioner has failed to make a sufficient showing to merit
the issuance of a certificate of appealability. Therefore, a
certificate of appealability shall not be issued.
petitioner's objections are OVERRULED.
The findings of fact and conclusions of law of the magistrate
judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in