Thain v. Lumpkin

October 16, 2023

Nathan Ochsner, Clerk

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

BLAKE ALLEN THAIN, § CIVIL ACTION NO

(TDCJ–CID 1102574) § 4:21-cv-01030

Petitioner, §

§

§

vs. § JUDGE CHARLES ESKRIDGE

§

§

BOBBY LUMPKIN, §

Respondent. §

MEMORANDUM ON DISMISSAL

The statute of limitations bars the petition for a writ of

habeas corpus brought by Petitioner Blake Allen Thain.

The motion to dismiss by Respondent Bobby Lumpkin

is granted. Dkt 10.

1. Background

In May 2002, a jury found Thain guilty of murder in

Cause Number 879844 in the 185th Judicial District Court

of Harris County, Texas. Dkt 11-1 at 197–98. The court

sentenced him to prison for sixty-five years. Id at 197.

The First Court of Appeals affirmed his conviction on

June 19, 2003. Thain v State, No. 01-02-00584-CR, 2003

WL 21404170 (Tex App Houston [1st Dist] 2003, pet refd).

The Texas Court of Criminal Appeals refused his

petition for discretionary review on February 11, 2004. In

re Thain, 2004 Tex Crim App Lexis 282.

Thain filed a state application for a writ of habeas

corpus on May 10, 2005. Dkt 11-19 at 7. The Texas Court

of Criminal Appeals dismissed it for noncompliance on

August 9, 2006. Dkt 11-19 at 2.

Thain filed a second application on September 1, 2008,

and the Texas Court of Criminal Appeals denied relief

without written order on findings of the trial court without

a hearing on June 30, 2010. Dkt 11-20 at 2.

Thain filed a third application on September 24, 2018.

The Texas Court of Criminal Appeals remanded the case to

the trial court for development of the record, findings of

fact, and conclusions of law. Dkt 11-31 at 1. Following the

remand, the Texas Court of Criminal Appeals denied

Thain’s application without written order on the findings

of the trial court without hearing and on the court’s

independent review of the record on November 25, 2020.

Dkt 11-37 at 1.

Thain filed his federal petition in March 2021. He

contends that his conviction is void because (i) the State

violated his right to a fair and impartial trial by

withholding exculpatory evidence, (ii) he is actually

innocent, and (iii) the state court denied him due process

by failing to hold an evidentiary hearing during his state

habeas proceedings and by allowing his interrogatories to

go unanswered. Dkt 1 at 6–7.

2. Legal standard

The Anti-Terrorism and Effective Death Penalty Act of

1996 imposes a one-year statute of limitations for federal

habeas corpus petitions. The statute provides in part:

(1) A 1-year period of limitation shall

apply to an application for a writ of habeas

corpus by a person in custody pursuant to

the judgment of a State court. The

limitation period shall run from the latest

of—

(A) the date on which the judgment

became final by the conclusion of direct

review or the expiration of the time for

seeking such review;

(B) the date on which the impediment

to filing an application created by State

action in violation of the Constitution or

laws of the United States is removed, if the

applicant was prevented from filing by

2

such State action;

(C) the date on which the constitutional

right asserted was initially recognized by

the Supreme Court, if the right has been

newly recognized by the Supreme Court

and made retroactively applicable to cases

on collateral review; or

(D) the date on which the factual

predicate of the claim or claims presented

could have been discovered through the

exercise of due diligence.

28 USC § 2244(d)(1).

Most directly at issue here is § 2244(d)(1)(A),

pertaining to limitations running from judgment finality at

the conclusion of direct review. The Fifth Circuit explained

in Roberts v Cockrell that “a decision becomes final by the

conclusion of direct review or the expiration of the time for

seeking such review.” 319 F3d 690, 694 (5th Cir 2003)

(cleaned up). Absent appeal to the state’s highest court,

judgment becomes final when the time for seeking such

review expires. Gonzalez v Thaler, 565 US 134, 137 (2012)

(cleaned up).

But even after a judgment becomes final in state

proceedings, the limitations period under § 2244(d)(1)(A)

doesn’t proceed inexorably forward. AEDPA instead

provides, “The time during which a properly filed

application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is

pending shall not be counted toward any period of

limitation under this subsection.” 28 USC § 2244(d)(2). And

so the clock that ticks onward pursuant to § 2244(d)(1)(A)

is paused to the extent and during the time period to which

§ 2244(d)(2) applies.

Petitioners seeking a writ of habeas corpus pursuant to

28 USC § 2241 may also seek to toll the limitations period

under § 2244(d)(1)(A) by invoking the doctrine of equitable

tolling. This preserves claims in situations “when strict

application of the statute of limitations would be

3

inequitable.” United States v Patterson, 211 F3d 927, 930

(5th Cir 2000), quoting Davis v Johnson, 158 F3d 806, 810

(5th Cir 1998). And so, even if a petitioner can’t pause

AEDPA’s statutory limitations period under § 2244(d)(2),

he can seek to achieve the same result equitably.

3. Analysis

a. Limitations

Thain’s conviction became final when the time expired

for filing a petition for a writ of certiorari, being ninety days

after the Texas Court of Criminal Appeals denied review.

Supreme Court Rule 13.1 (West 2002).

The Texas Court of Criminal Appeals refused Thain’s

petition for discretionary review on February 11, 2004.

Thain’s deadline for filing a petition for a writ of certiorari

was May 11, 2004. Thain thus had until May 11, 2005, to

file his federal petition for a writ of habeas corpus. He

waited until May of 2021 to do so. He did file three

applications for state habeas corpus relief, but none had

any tolling effect. The petition thus appears to be untimely

under 28 USC § 2244(d)(1)(A).

Thain doesn’t allege or demonstrate that any of the

remaining alternate AEDPA triggers set a different end to

the limitations period. As to § 2244(d)(1)(B), nothing in the

record indicates that any unconstitutional action by the

State imposed an impediment to Thain filing an

application for federal habeas corpus relief before the end

of the limitations period. As to § 2244(d)(1)(C), the claims

by Thain don’t concern a constitutional right recognized by

the Supreme Court within the last year and made

retroactive to cases on collateral review.

Thain does argue that his petition is timely under

§ 2244(d)(1)(D) because he didn’t discover the results of

atomic absorption tests until February 16, 2018. Dkt 1 at

11. He maintains that the prosecutor didn’t disclose the

results of those tests to trial counsel, that the results were

favorable to his defense theory, and that they would have

led to an acquittal. He also claims that he is actually

innocent of the offense because he would have been

4

acquitted if the State had disclosed this evidence. Dkt 1 at

7–9; Dkt 3 at 9–18.

The record doesn’t support any of these arguments.

Thain raised these claims relating to the disclosure of the

atomic absorption test results in his third state habeas

application. Dkt 11-29 at 10–12. As exhibits, he attached

the laboratory reports from the atomic absorption

spectrophotometry tests conducted on his and two other

suspects’ hands. Dkt 11-29 at 76, Dkt 11-30 at 1–2. The

reports, dated June 27, 2001, indicated the results of each

of the tests were “inconclusive.” Ibid.

The Texas Court of Criminal Appeals remanded to the

trial court for development of the record. Dkt 11-31 at 1.

Both trial counsel and the lead prosecutor for the State

filed affidavits addressing whether the results of the

atomic absorption spectrophotometry tests were disclosed

to the defense and whether the results of the tests were

favorable to Thain’s case. Dkt 11-35 at 35–36.

Thain’s trial counsel, James Leitner, testified as

follows:

I am currently an Assistant District Attorney

for the Harris County District Attorney’s Office.

However, at the time of the applicant’s 2002 trial I

was a criminal defense attorney and my practice

was solely devoted to that area of law. I have

handled well over one thousand criminal cases in

Harris County. Please find this as my response to

the trial court’s order for affidavit.

With respect to whether I had access to the

State’s file during my representation of the

applicant, I respond that I did. In 2002, the Harris

County District Attorney’s Office had an open file

policy that allowed me to review the contents of the

State’s file. I was not allowed to make copies of the

offense report or witness statements but I was able

to make notes from the contents of the file

including any reports. I no longer have my defense

file in Mr. Thain’s case.

5

With respect to whether I was aware prior to

trial of the results of the atomic absorption

spectrophotometry test performed on applicant, I

respond that I have no specific recollection,

however, from a review of the reporter’s record and

of the State’s file I believe that I would have

handled this at trial the way I did if I had known

the results were inconclusive and the State failed

to bring this evidence before the jury, or I didn’t

know of the results and thought the jury would be

influenced by the State’s failure to perform the test.

To begin, I see that I filed a motion titled “Request

for Brady Material” and I specifically requested for

the results of any AA tests done. Therefore, a test

result that would have helped me would have

surely been brought forward by me at the trial.

Test results that unquestionably hurt our cause

would have caused me to avoid it like the plague.

The fact of what I did on argument was my way of

getting as much out of either situation. Therefore,

I just don’t remember whether I knew of

inconclusive results or not. Additionally, I have

read in the record where I argued that the State

failed to produce the results of the analysis of the

atomic absorption spectrophotometry tests at trial

though there was much discussion about the

applicant’s hands – and two of his friends̓ hands –

being bagged and swabbed. I see now that the

laboratory report is dated June 27, 2001, and the

applicant’s trial began on April 29, 2002, and

therefore the report existed for over 10 months

prior to trial, and I believe that it probably is more

likely that I knew of it and reviewed it prior to trial,

but I am just not sure one way or the other.

With respect to why I chose not to introduce the

results of the test or otherwise used the results of

the test as part of the applicant’s defense, I respond

that again I have no specific recollection, however,

from a review of the laboratory report, the results

6

of the test on the applicant’s hands show to be

inconclusive and therefore if I had access to the

report, I likely did not think that introducing the

results would have been as beneficial to the

applicant’s defense as arguing the way that I did.

It should be noted the other two boy’s hands also

showed to have inconclusive results. In either

event I took the strategic defensive strategy to

argue that the State did not bother to do a complete

investigation on a murder case. I have also found

in my experience that calling a witness to testify as

to inconclusive results sometimes allows the State

to then obtain hurtful explanatory information on

cross-examination as to why the results might be

inconclusive. Indeed, the report itself lists out

factors to be considered for interpretation of

results, which I believe would only hurt or

negatively impact the applicant’s defense in

comparison to the strategy that I took.

With respect to whether the applicant and I

discussed the results of the atomic absorption

spectrophotometry test during my representation,

I respond that I have no specific recollection. If I

knew then I am sure we discussed it, if I didn’t

know then we didn’t discuss it. I believe that I

would have discussed the report and the results

contained therein with the applicant prior to trial

had I known about it.

Dkt 11-35 at 41–43.

The lead prosecutor for Thain’s criminal case, Tammy

Jean Thomas, testified as follows:

My practice now consists primarily of criminal

defense law. I was an Assistant District Attorney

from 1990 through 2017. I have handled well over

one thousand criminal cases in Harris County.

I was the Chief prosecutor in the District Court

in 2002 and I handled the Blake Thain trial of the

murder of Kaci Fink. The case was already pending

7

when I was transferred into the 185th District

Court from a different assignment. I then handled

the case through its conclusion where the applicant

was convicted of murder and sentenced to sixty-five

years in prison and a $10,000 fine by the jury.

In preparation for this affidavit I have

reviewed portions of the reporter’s record, reviewed

the State’s file, and spoke with the habeas

prosecutor regarding the question as to whether

the State disclosed certain evidence to the defense

prior to the applicant’s trial. Please find this as my

response to the Court’s inquiry.

With respect to whether the State failed to

disclose before trial the results of the atomic

absorption spectrophotometry test performed on

applicant, I respond that the State had. It is my

recollection that I provided Mr. Leitner with a copy

of the laboratory report prior to trial. I know that

the State’s file was open and Mr. Leitner was free

to review all materials within the file, including all

of the laboratory reports. As previously mentioned,

I have reviewed the State’s file, and I have

observed that the laboratory report that shows the

applicant’s atomic absorption spectrophotometry

results is within the State’s file, and not in any file

that would have hindered Mr. Leitner from

reviewing it. Additionally, a review of the

reporter’s record indicates that I discussed with

several of the State’s witnesses during trial, in the

presence of the jury, that the applicant’s hands –

as well as other individuals̓ hands – were bagged

for purposes of preserving potential atomic

absorption spectrophotometry evidence. This is an

indication to me that the fact and/or existence of

the results of the laboratory report were known to

the defense. My recollection is that I chose not to

introduce the inconclusive results of the test

because I did not believe it advanced the State’s

theory of the case and I would have preferred to

8

have been in the posture of cross-examining the

results if the defense chose to present the results.

Dkt 11-35 at 45–46.

The trial court found both affidavits to be credible and

the facts asserted therein to be true. Dkt 11-35 at 163, 177

(findings 8 & 23). And the trial court made the following

relevant findings of fact:

11. The Court finds that the Harris County

Medical Examiner’s Office (Joseph A. Jachimczyk

Forensic Center) performed analysis on the

applicant’s right and left hands on June 26, 2001,

and the results were inconclusive as indicated by a

laboratory report dated June 27, 2001. See

Applicant’s Exhibit 4, Laboratory Report, p. 3.

12. The Court finds that the laboratory report

shows that the other males, Jay Mitchell and

Clifton Cavins, whose hands were tested also

showed to be inconclusive with respect to atomic

absorption spectrophotometry. See Applicant’s

Exhibit 4, Laboratory Report.

13. The Court finds, based on the clerk’s record,

that Leitner filed a motion, “Request for “Brady”

Materials” on July 3, 2001, which requested the

trial court to order the State to disclose “for the

results of any atomic absorption tests done to the

hands of the defendant, or any other person who

had access to the physical location of where the

shooting occurred.” (I C.R. at 12-15). Leitner also

filed a “Motion for Discovery” that requested the

trial court to order the State to produce “the results

of all scientific tests conducted by a State agency or

law enforcement agency concerning evidence

studied in connection with the investigation or trial

of the offense with which the Defendant is herein

indicted.” (I C.R. at 29-37). Neither order attached

to the motions were signed by the trial court.

14. The trial court entered a discovery order on

April 12, 2002 (I C.R. at 110[-]112). The discovery

9

order required the State to provide copies of all

“laboratory reports of all examinations of

contraband, fluids, hairs, fingerprints, blood

samples, ballistics, soil, fibers, and paints” (I C.R.

at 111).

15. The Court finds, based on a review of the

reporter’s record, that the State first presented

evidence of what an atomic absorption test was

through the testimony of Baytown Police Office[r]

K.R. “Kenneth” Hampton (VI R.R. 8 through 11).

Hampton testified that upon locating Cavins and

Mitchell their hands were immediately bagged (VI

RR 8-9). Hampton explained the purpose of

bagging an individual’s hands was to preserve

potential evidence (VI R.R. at 11). Hampton also

testified that he submitted the evidence to the ID

office at Baytown Police Dept (VI R.R. At 11)[.]

16. The Court finds, based on the reporter’s

record, that the applicant’s hands were bagged by

Baytown Police Officers Chris Felder and Captain

Jones (VI R.R. at 50-51, 116).

17. The Court finds, based on the reporter’s

record, that Baytown Police Officer George Drude

swabbed the applicant’s hands and performed the

atomic absorption test (VI R.R. at 116).

18. The Court finds, based on the reporter’s

record, that Leitner cross examined Officer Drude

as to his qualifications to perform the test (VI R.R.

at 132-136).

19. The Court finds, based on the reporter’s

record, that the State presented evidence through

Baytown Police Officer Kevin Davis that three

atomic absorption kits pertaining to the applicant,

Clifton Cavins, and James Mitchell, were taken

from the Baytown Police Department property

room to the Harris County Medical Examiner’s

Office on June 19, 2001 (VII R.R. at 133).

10

20. The Court finds, based on the reporter’s

record, that the Laboratory Report that shows the

inconclusive atomic absorption test results for the

applicant was never admitted at trial.

21. The Court finds, based on the reporter’s

record, that Leitner never objected to being

unaware of the information contained within any

laboratory reports or otherwise indicated that he

was surprised by the State’s presentation of

evidence surrounding atomic absorption test

collection procedures.

22. The Court finds, based on the reporter’s

record, that during the guilt portion of closing

argument Leitner argued:

There was no physical evidence in that car

that puts Blake Thain in that car. There

was – they told you we seized hair, they

told you we seized fibers and from what you

know, they didn’t ever do anything with

them. They told you that we did an atomic

absorption test on Jay’s hands and June’s

hands, which is a test to show you if

somebody fired the gun to show you

somebody was the short or not, and what

did they do with those tests? Does it make

sense they wouldn’t run it? The problem is

that when you make an assumption from

the very beginning, before you do your

examination and your investigation, that

can spoil everything because you then do

everything based on the assumptions. You

only ask for tests to be done that support

your assumptions. You don’t ask for: Tell us

about everything else you do if it doesn’t

support our assumption. But they let you

know before they got to the phone booth,

they had already made the assumption Jay

and June weren’t the shooters. Why even

take those atomic absorption tests? Why

11

take them if you’re not going to have them

analyzed? Why take blood from anybody...

(IX R.R. at 15-16).

23. The Court finds that Tammy J. Thomas

submitted an affidavit and that the affidavit is

credible and the facts asserted therein to be true.

24. The Court finds, based on the credible

affidavit of Thomas, that the State had disclosed

the results of the atomic absorption spectro-

photometry test performed on applicant to the

defense prior to trial. See Affidavit of Tammy

Thomas, July 24, 2019.

25. The Court finds, based on the credible

affidavit of Thomas, that it is Thomas̓ recollection

that she provided a copy of the laboratory report at

issue to Leitner prior to trial. See Affidavit of

Tammy J. Thomas, July 24, 2019.

26. The Court finds, based on Thomas’

affidavit, that the State’s file was open to Leitner

and he was free to review all of the materials

within the file, including all of the laboratory

reports. See Affidavit of Tammy J. Thomas, July

24, 2019.

27. The Court finds, based on Thomas̓ affidavit,

that the lab report is contained in the State’s file.

See Affidavit of Tammy J. Thomas, July 24, 2019[.]

28. The Court finds, based on the credible

affidavit of Leitner, that Leitner no longer has his

defense file in the applicant’s case. See Affidavit of

James M Leitner, July 1, 2019.

28.[sic] The Court finds, based on the credible

affidavit of Leitner, that Leitner had access to the

State’s file during his representation of the

applicant, and that Harris County District

Attorney’s Office had an open file policy that

allowed Leitner to review the contents of the file.

See Affidavit of James M. Leitner, July 1, 2019.

12

29. The Court finds, based on Leitner’s

affidavit, that Leitner does not have a specific

recollection as to whether he was aware prior to

trial of the results of the atomic absorption

spectrophotometry test performed on the

applicant. See Affidavit of James M. Leitner, July

1, 2019.

30. The Court finds, based on Leitner’s

affidavit, that due to the report being dated on

June 27, 2001, and the applicant’s trial beginning

on April 29, 2002, that it is more probable that he

was aware of the report prior to trial. See Affidavit

of James M. Leitner, July 1, 2019.

31. The Court finds, based on Leitner’s

affidavit, that Leitner does not have a specific

recollection as to why he chose not to admit the

laboratory report that showed inconclusive results

for the atomic absorption spectrophotometry tests

on the applicant’s hands, as well as the other two

males̓ hands. See Affidavit of James M. Leitner,

July 1, 2019.

32. The Court finds, based on Leitner’s

affidavit, that Leitner likely did not think

introducing the results would have been as

beneficial to the applicant’s defense as arguing the

way that he did. See Affidavit of James M. Leitner,

July 1, 2019.

33. The Court finds, base[d] on Leitner’s

affidavit he took the defensive strategy to argue the

State did not bother to complete the investigation

in the murder case. See Affidavit of James M.

Leitner, July 1, 2019[.]

34. The Court finds, based on Leitner’s

affidavit, that Leitner has found in his experience

that calling a witness to testify as to inconclusive

results sometimes allows the State to then obtain

hurtful explanatory information on cross-

examination as to why the results might be

13

inconclusive. See Affidavit of James M. Leitner,

July 1, 2019.

35. The Court finds that the laboratory report

lists out factors to be considered for interpretation

of results which could only hurt or impact the

defense in comparison to the strategy taken. See

Affidavit of James M. Leitner[,] July 1, 2019[.]

36. The Court finds, based on Leitner’s

affidavit, that Leitner does not have a specific

recollection as to whether he and the applicant

discussed the results of the atomic absorption

spectrophotometry test. However, if Leitner was

in-fact aware of the results then he is certain that

he did discuss the results with the applicant, but if

he was unaware of the results then a discussion

was not had. See Affidavit of James M. Leitner,

July 1, 2019.

33.[sic] The Court finds the State did not fail to

disclose before trial the results of the atomic

absorption test performed on applicant.

37. The Court finds that the applicant could

have discovered the factual basis of his claim with

the exercise of reasonable diligence before he filed

his previous application in this cause. The

laboratory report is dated June 27, 2001.

38. The Court finds, based on the reporter’s

record, that that the inconclusive results of the

atomic absorption spectrophotometry tests are not

material to the applicant’s guilt or punishment.

CONCLUSIONS OF LAW

1. Applicant fails to show 1) the State failed to

disclose evidence; 2) the evidence was favorable to

the applicant; and 3) the evidence was material,

such that there is a reasonable probability that,

had the evidence been disclosed to the defense, the

outcome of the trial would have been different. Ex

parte Kimes, 872 S.W.2d 700, 70203 (Tex. Crim.

App. 1993).

14

The Texas Court of Criminal Appeals adopted the

findings of the trial court on remand, conducted its own

review of the record, and denied Thain’s application

without written order. Dkt 11-37 at 1.

The foregoing establishes, for purposes here, that the

results of the atomic absorption tests about which Thain

complains were made available to defense counsel prior to

and during trial. The laboratory reports are dated June 27,

2001, and trial was conducted in April and May of 2002.

See Dkt 11-2. Dkt 11-29 at 76, Dkt 11-30 at 1–2. Although

the laboratory reports were not admitted as evidence at

trial, several witnesses discussed the atomic absorption

kits, the physical swabbing of Thain’s hands, and the

procedure by which the tests are conducted. Dkt 11-35 at

175–176. Defense counsel “never objected to being unaware

of the information contained within any laboratory reports

or otherwise indicated that he was surprised by the State’s

presentation of evidence surrounding atomic absorption

test collection procedures.” Id at 176 (Finding #21). For

these reasons, Thain fails to show that the factual

predicate of his claims could not have been discovered

earlier through the exercise of due diligence.

As such, 28 USC § 2244(d)(1)(D) doesn’t provide a later

trigger date for the AEDPA’s statute of limitations.

Absent equitable tolling, Thain’s petition is beyond the

applicable limitations period.

b. Equitable tolling

The Fifth Circuit holds that cases presenting “rare and

exceptional circumstances” can equitably toll the one-year

AEDPA statute of limitations. Jackson v Davis, 933 F3d

408, 410 (5th Cir 2019) (internal quotations omitted); see

also Holland v Florida, 560 US 631, 649 (2010) (citations

omitted). Equitable tolling applies principally where the

plaintiff is actively misled by the defendant about the cause

of action or is prevented in some extraordinary way from

asserting his rights. United States v Wheaten, 826 F3d 843,

851 (5th Cir 2016) (citations omitted) (discussing equitable

tolling in context of § 2255).

15

A petitioner seeking a writ of habeas corpus has to

prove entitlement to equitable tolling. Phillips v Donnelly,

216 F3d 508, 511 (5th Cir 2000, per curiam) (collecting

cases). To do this, he must show diligence in the pursuit of

rights and extraordinary circumstances that prevented

timely filing. Manning v Epps, 688 F3d 177, 183–84

(5th Cir 2012) (citations omitted). The required diligence is

that which is reasonable, not that which is maximumly

feasible. Holland, 560 US at 653 (quotation omitted).

Thain fails to show that any extraordinary

circumstance prevented him from timely filing his federal

petition. The record in no way suggests that the State of

Texas misled him or otherwise prevented him from filing

within the deadline.

The record also doesn’t support a finding that Thain

diligently pursued his rights as required to obtain

equitable relief. His state application and this federal

petition were filed pro se, but even construed generously,

he let approximate gaps of almost fourteen years after his

conviction became final on May 11, 2004, to file his third

state habeas application raising the instant claims on

September 24, 2018. That application was denied on

November 25, 2020, and he waited an additional sixteen

months before filing this federal petition in March 2021.

Such delays counsel in the aggregate against the

application of the equitable tolling doctrine. See Ott v

Johnson, 192 F3d 510, 514 (5th Cir 1999). Indeed, the Fifth

Circuit has found delays much shorter than those at issue

here to preclude a finding of diligence. For example, see

Melancon v Kaylo, 259 F3d 401, 408 (5th Cir 2001) (finding

petitioner not entitled to equitable tolling after delay of

four months).

c. Actual innocence

A petitioner seeking habeas corpus relief may overcome

the expiration of the AEDPA limitations period if the

asserted claim qualifies under an exception to avoid a

fundamental miscarriage of justice. McQuiggin v Perkins,

569 US 383, 392–94 (2013). A viable claim of actual

16

innocence serves as a gateway to bypass a procedural bar

(such as the expiration of the statute of limitations) so that

a constitutional claim may be heard. Id at 386, 392. But the

standard is “demanding” and opens “only when a petition

presents ‘evidence of innocence so strong that a court

cannot have confidence in the outcome of the trial unless

the court is also satisfied that the trial was free of

nonharmless constitutional error.’” Id at 401, quoting

Schlup v Delo, 513 US 298, 316 (1995); see also Floyd v

Vannoy, 894 F3d 143, 154–55 (5th Cir 2018) (citations

omitted).

Actual innocence in this context means “factual

innocence, not mere legal insufficiency.” Bousley v United

States, 523 US 614, 623 (1998), citing Sawyer v Whitley,

505 US 333, 339 (1992); see also Calderon v Thompson, 523

US 538, 559 (1998), citing Sawyer, 505 US at 339. And a

petitioner must support the allegations with new and

reliable evidence that was not presented at trial, while

establishing that it is “‘more likely than not that no

reasonable juror would have convicted him in the light of

the new evidence.’” Fairman v Anderson, 188 F3d 635, 644

(5th Cir 1999), quoting Schlup, 513 US at 327; accord

Finley v Johnson, 243 F3d 215, 221 (5th Cir 2001); United

States v Jones, 172 F3d 381, 384 (5th Cir 1999) (citation

omitted).

The Fifth Circuit holds, “The Schlup standard ‘does

not merely require a showing that a reasonable doubt

exists in the light of the new evidence, but rather that no

reasonable juror would have found the defendant guilty.’”

Bosley v Cain, 409 F3d 657, 664 (5th Cir 2005), quoting

Schlup, 513 US at 329 (emphasis added). As noted, this

standard is a demanding one.

Thain argues that the untimeliness of his petition is

excused because newly discovered evidence shows that he’s

actually innocent of murder. This, too, relates to his

contention that the atomic absorption test showed that he

didn’t fire the fatal bullets. Dkt 1 at 7.

17

The appellate court on direct review of Thain’s

conviction summarized the evidence at trial as follows:

In October 2000, Crystal Davis was not doing

well in school and was not getting along with her

mother, so she decided to move in with her

boyfriend’s parents, Larry and Tanis Fink. The

Finks had four children, including Crystal’s

boyfriend, Ross, his younger sister, Kaci, and two

younger twin boys, Ryan and Neal. Kaci was 17-

years-old and was a junior at Ross Sterling High

School in Baytown.

Crystal knew appellant from school. Sometime

after midnight on June 14, 2001, Crystal was

playing on the computer when she received an

instant message from appellant. Appellant invited

Crystal over for a drink. Although Kaci had never

met appellant, Crystal asked him if she could bring

Kaci along.

It was approximately 2:00 a.m. when the girls

climbed out of a window and drove Ross’s car to

appellant’s house. Appellant met Crystal and Kaci

outside his house. Crystal noticed a white

Mercedes parked outside appellant’s house. The

three walked into appellant's living room where the

two girls met two guys nicknamed Jay and June.

Their names are James Mitchell and Clifton Davis,

respectively. Appellant suggested they all go in his

bedroom because his mother was asleep.

Appellant's bedroom had bunk beds, two closets,

two televisions, and many “Star Wars” figurines

that were still in their packages and displayed on

the wall. The wallpaper image on appellant's

computer was a picture of appellant's face.

Appellant's window had a large sign draped across

the window that said “Lakewood pimp.”

Appellant gave the girls a bottle of hard

lemonade to share. They watched cartoons,

including a “Dragon Ball Z” video, and talked for

18

about an hour. They also listened to music from a

group called “Stain.”

Eventually, Crystal and Kaci got up to leave.

Appellant was walking them out when he asked

them to stop and he went back to his bedroom.

After the girls had walked outside and said

goodbye, appellant asked Crystal to come back to

his room. Crystal, Jay, and appellant went back to

his bedroom. When Jay left, appellant asked

Crystal, “What’s up with your friend Kaci?” Crystal

replied, “Well, she thinks you’re cute, but she’s

dating someone right now.” As Crystal tried to open

the bedroom door, appellant shut it and started

kissing her. Crystal pushed on his chest and told

him, “No, I have a boyfriend and, you know I don’t

want to do this.” As Crystal turned to open the door

again, appellant tapped on her shoulder and called

her name. She turned around and saw that

appellant was holding a silver handgun with a

black handle.

Crystal got upset and said, “You’re joking.”

Appellant replied, “Nope, this isn’t a joke,” and

motioned for Crystal to get on the bed or the chairs.

Crystal became more upset and said, “No, I’m not,

I’m leaving, I’m leaving.” Appellant told her to turn

around and be quiet, but she opened the door and

ran through the house to the backdoor. As she got

near one of the cars, appellant caught her from

behind, put his arms around her neck, and a gun to

her head. Crystal fell and Kaci came up and pushed

appellant off of Crystal. Both girls rushed to their

car. As Kaci opened the door, appellant jumped in

the backseat of the car and ordered the two girls to

get inside and drive. Crystal did not see appellant’s

gun but she suspected that he might still have it

with him.

Appellant ordered Crystal to turn on Mayhow

Street but she refused because she knew that it led

to a deserted area. Crystal continued driving

19

toward the Finks’ house. Appellant told Crystal to

take him back home. Crystal told him that she

would drop him off at the end of Lakewood Drive,

appellant’s neighborhood entrance.

As Crystal approached Lakewood on Bayway,

she saw Jay’s white Mercedes coming out of

appellant’s neighborhood. Appellant told Crystal to

flash the lights so that he could get into the

Mercedes. Crystal flashed the car lights and

started slowing down. Before Crystal had fully

stopped, she heard the car door open and heard

many gunshots coming from inside her car.

Appellant exited the car through the passenger

door and ran into a nearby open field toward the

direction of his house.

Crystal got out of the car and managed to get a

driver of a pickup truck to stop. The driver of an 18-

wheeler also stopped at the scene. Crystal went

back to check on Kaci and became hysterical when

she saw Kaci covered in blood. The driver of the 18-

wheeler called 9-1-1 and Kaci’s parents.

Paramedic Sean Saunders, from the City of

Baytown, arrived at the scene at 4:19 a.m. After he

placed a heart monitor on Kaci’s body, he found no

sign of any electrical activity in her heart and

concluded she was deceased. He noted that Kaci

had injuries inconsistent with life and decided not

to work on her any further.

Rene Hinojosa, from the Baytown Police

Department, arrived on the scene sometime after

4:09 a.m. He saw Kaci sitting in the car and

observed blood coming out of her ears, nose and

mouth. He also noticed that the car was still

running and that the driver’s side window was

shattered. Hinojosa saw Kaci’s parents walking up

to the car. When Kaci’s father asked why the

paramedics were not treating his daughter,

Hinojosa told them that she was dead.

20

Kaci sustained several bullet wounds. One

bullet entered the back of her left hand and exited

near her index finger. Another one entered near

her right ear, fracturing her skull, went through

her brain, and exited through the center of her

forehead. A third bullet entered on the right side of

her back, piercing her right lung, causing trauma

to the aorta, and exited through her upper chest. A

fourth bullet, traveled through her right and left

thighs respectively, exiting through her left calf.

Five .380 caliber shell casings were found

outside of the car and another one was discovered

inside on the center console. Two fired bullets were

found among the broken glass in the driver’s seat.

Other bullets were recovered from the floorboard

and from the driver’s side door.

Chris Felder, from the Baytown Police

Department, went to appellant’s home along with

some other officers, including George Drude. Drude

called appellant’s phone but there was no answer.

About 30 minutes later, Drude called appellant and

he answered. Drude identified himself and asked

appellant to step outside, but appellant refused,

and wanted to know the charges. Drude told

appellant that the house was surrounded, but

appellant responded “he didn’t feel like getting up

right now, that he would call back ... when he got

ready to ... Y’all can wait out there. Y’all are on

overtime.” Drude called appellant again, and

appellant stated, “I know y’all are after me for

something. So y’all can wait until I get up. Y’all are

on overtime.” This continued for three hours until

appellant eventually came out of his house and was

arrested.

Appellant’s house was searched the next day.

Inside appellant’s bedroom was a gun range target

and a gun rack. There was a box of shell casings,

including .38 caliber, .380 caliber, and .22 caliber

shells, and a holster in appellant’s closet. A

21

“Dragon Ball Z” video was found in the VCR, and a

compact disk of the group “Stain” was found on top

of the videotapes. There were four bottles of

Boone’s Hard Lemonade recovered from

appellant’s bedroom; however, there were no

usable fingerprints on the bottles. The fired shell

casings found in appellant’s bedroom and the fired

shell casings found at the murder scene were all

fired from the same gun.

Thain v State, No. 01-02-00584-CR, 2003 WL 21404170,

*1–5 (Tex App Houston [1st Dist] 2003, pet refd).

Thain now argues that the atomic absorption test

clearly demonstrates that he didn’t fire the fatal bullet that

killed Kaci Fink. There are several problems with this line

of argument.

The most pertinent problem is the timing of the atomic

absorption test—and Thain’s knowledge of it. The test was

conducted on June 27, 2001 (approximately two weeks

after the subject murder), with the lab report dated the

next day. Thain’s trial began on April 29, 2002. But he now

states that he learned of the results of the atomic

absorption test only in February 2018, in response to a

Public Information Request to the Harris County Institute

of Forensic Science.

To the contrary, the state court on review determined

factually that the prosecution’s file was open to the defense,

and that it hadn’t failed to disclose the test report. And

defense counsel has acknowledged, as noted above, that the

report existed for over ten months prior to trial. Defense

counsel further explained that from a review of the

laboratory report, the results of the test on Thain’s hands

were shown to be inconclusive—and thus if he had access

to the report (on which point he couldn’t recall one way or

the other), he didn’t think that introducing the results

would have been beneficial to Thain’s defense. Instead, the

record reflects that counsel chose to point out that Thain’s

hands had been bagged and swabbed, and that the State

failed to produce the results of the analysis of the atomic

22

absorption spectrophotometry tests at trial—suggesting

that the prosecution didn’t do a complete investigation on

a murder case.

Thain’s argument thus falls far short of meeting “the

threshold requirement” of a viable claim of actual

innocence allowing bypass of an otherwise applicable

procedural bar. McQuiggin, 569 US at 386; see also Schlup,

513 US at 324 (actual innocence claim must be supported

by “new reliable evidence” of an “exculpatory” nature);

Fairman v Anderson, 188 F3d 635, 644 (5th Cir 1999)

(same).

But more, Thain’s delay in presenting his assertion

itself renders it untenable. The Supreme Court holds that

the untimeliness of a petition itself bears “on the credibility

of evidence proffered to show actual innocence.”

McQuiggin, 569 US at 401. Any unexplained delays in

presenting supposed new evidence is highly relevant in

determining whether a petitioner has shown actual

innocence. Id at 399. And it’s equally clear that 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 F3d at 389, quoting Moore v

Quarterman, 534 F3d 454, 465 (5th Cir 2008) (alteration in

original).

The foregoing indicates that all of the facts that Thain

purports to know now were of necessity equally known to

him (and his counsel) at the time that he was found guilty

of murder in May 2002. But he waited over sixteen years

after his conviction to bring these facts to the attention of

the courts. Given that delay in bringing forward this

putative evidence, it simply can’t be said that “it is more

likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” McQuiggin,

569 US at 399.

The claim of actual innocence by Thain doesn’t make

his petition timely. His petition will thus be dismissed as

untimely.

23

4. Motion for evidentiary hearing

Thain seeks an evidentiary hearing as to his challenge

to his conviction and sentence. See Dkt 3 at 18.

Rule 8 of the Rules Governing Section 2254 Cases

states, “If it appears that an evidentiary hearing is not

required, the judge shall make such disposition of the

petition as justice shall require.” The reviewing court thus

has discretion to reject the need for an evidentiary hearing.

See Conner v Quarterman, 477 F3d 287, 293 (5th Cir 2007),

citing Roberts v Dretke, 381 F3d 491, 497 (5th Cir 2004).

Indeed, AEDPA reflects a congressional intent “to avoid

unneeded evidentiary hearings” in federal habeas corpus

proceedings. Williams v Taylor, 529 US 420, 436 (2000).

Section 2254(e)(2) of Title 28 thus provides:

If the applicant has failed to develop

the factual basis of a claim in State court

proceedings, the court shall not hold an

evidentiary hearing on the claim unless the

applicant shows that—

(A) the claim relies on—

(i) a new rule of constitutional law,

made retroactive to cases on collateral

review by the Supreme Court, that was

previously unavailable; or

(ii) a factual predicate that could not

have been previously discovered through

the exercise of due diligence; and

(B) the facts underlying the claim

would be sufficient to establish by clear and

convincing evidence that but for

constitutional error, no reasonable

factfinder would have found the applicant

guilty of the underlying offense.

A federal habeas corpus petitioner can have an

evidentiary hearing if a genuine factual dispute exists and

the state hasn’t afforded a full and fair hearing. Clark v

Johnson, 202 F3d 760, 766 (5th Cir 2000), quoting Perillo

v Johnson, 79 F3d 441, 444 (5th Cir 1996). But a petitioner

24

isn’t entitled to a federal evidentiary hearing “if his claims

are merely ‘conclusory allegations unsupported by

specifics’ or ‘contentions that in the face of the record are

wholly incredible.’” Young v Herring, 938 F2d 543, 560

(5th Cir 1991), quoting Blackledge v Allison, 431 US 63, 74

(1977); see also Washington v Davis, 715 F Appx 380, 385

(5th Cir 2017, per curiam).

Thain presents nothing but conclusory assertions that

he is illegally confined due to prosecutorial misconduct and

denial of due process by the state habeas court. Dkt 12. An

evidentiary hearing isn’t necessary where nothing

establishes a pertinent factual dispute requiring

development in order to assess the claims. Robison v

Johnson, 151 F3d 256, 268 (5th Cir 1998) (internal

quotations omitted). To the contrary, all issues raised in

this case can be and have been resolved based on the

pleadings.

The motion for evidentiary hearing will be denied.

Dkt 3.

5. Certificate of appealability

Rule 11 of the Rules Governing Section 2254 Cases

requires a district court to issue or deny a certificate of

appealability when entering a final order that is adverse to

the petitioner. A certificate of appealability will not issue

unless the petitioner makes “a substantial showing of the

denial of a constitutional right.” 28 USC § 2253(c)(2). This

requires a petitioner to demonstrate “that reasonable

jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v

McDaniel, 529 US 473, 484 (2000) (citation omitted).

Where the court denies relief based on procedural grounds,

the petitioner must show that “jurists of reason would find

it debatable whether the petition states a valid claim of the

denial of a constitutional right,” and that they “would find

it debatable whether the district court was correct in its

procedural ruling.” Ibid.

The Court finds that jurists of reason wouldn’t debate

whether any procedural ruling in this case was correct. As

25

such, Thain hasn’t made the necessary showing to obtain a

certificate of appealability.

A certificate of appealability will be denied.

6. Conclusion

The pleadings and state court records show that the

federal petition for a writ of habeas corpus brought by

Petitioner Blake Allen Thain is untimely.

The motion to dismiss by Respondent Bobby Lumpkin

based on limitations is GRANTED. Dkt 10.

The petition is DENIED. Dkt 1.

A certificate of appealability is DENIED.

The motion for evidentiary hearing filed by Thain is

DENIED. Dkt 3.

Any other pending motions are DENIED AS MOOT.

This case is DISMISSED WITH PREJUDICE.

SO ORDERED.

Signed on October 12, 2023, at Houston, Texas.

Hon. Charles Eskridg

United States District Judge

26