# Thain v. Lumpkin

> District Court, S.D. Texas · October 12, 2023

URL: https://www.frixlaw.com/law-library/cases/10677041

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** October 12, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10677041

## How later opinions describe it (automated extraction)

- finding petitioner not entitled to equitable tolling after delay of four months

## Opinion text

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.
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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
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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
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“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
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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.
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10677041. Public record. Not legal advice.