Petition for Writ of Certiorari — Bruce Randol Merryman, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-50914

July 12, 2019

Lyle W. Cayce

Clerk

BRUCE RANDOL MERRYMAN,

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:17-CV-311

Before KING, ELROD, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Bruce Randol Merryman (“Merryman”) appeals the district court’s

dismissal of his 28 U.S.C. § 2254 (“§ 2254”) petition as time-barred. We granted

a certificate of appealability (“COA”) solely as to the issue of whether, in view

of the holding of the Texas Court of Criminal of Appeals (“TCCA”) in Berry v.

State, 424 S.W.3d 579 (Tex. Crim. App. 2014), regarding the meaning of

* Pursuant to 5TH ClR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH

ClR. R. 47.5.4.

ppt-vuJ) X — H

No. 17-50914

“fiduciary” in one of Merryman’s statutes of conviction, the district court erred

in determining that Merryman had not established a gateway claim of actual

innocence.

For the reasons stated below, we AFFIRM the district court’s

ruling.

I.

As a preliminary matter, we address Merryman’s “motion” for “new

evidence.”

We note, however, that Merryman’s motion is in actuality an

attempt to file a supplemental brief based, in part, on Ex parte Dawson, 509

S.W.3d 294 (Tex. Crim. App. 2016), and, in part, on his desire to further

express his concerns over the fairness of his trial and point out injustices in

the Texas Department of Criminal Justice with respect to challenging one’s

conviction.1

The contents of Merryman’s attempted supplemental brief go

beyond the scope of the issue on which the COA was granted. Therefore, this

court lacks jurisdiction to consider it. See Simmons v. Epps, 654 F.3d 526, 535

(5th Cir. 2011). Further, to the extent Merryman is seeking to raise a claim of

infirmity in his own state habeas proceedings, that is not a basis for federal

habeas relief.

See Moore v. Dretke, 369 F.3d 844, 846 (5th Cir. 2004).

Accordingly, his motion is DENIED.

II.

Having addressed Merryman’s pending motion, we proceed to his appeal.

Merryman was indicted on three counts of theft by deception and three counts

of misapplication of fiduciary property in violation of Texas statutory law. See

Merryman v. State, 391 S.W.3d 261, 264 (Tex. App.—San Antonio 2012, pet.

refd). The criminal charges concerned Merryman’s conduct with respect to

1 In Dawson, one justice of the TCCA filed a concurring opinion expressing the view

that the TCCA should change its practice of allowing habeas petitions to be decided “by a

lone judge rather than by all judges or a panel of the judges elected to [the TCCA].” 509

S.W.3d at 297—98 (Alcala, J., concurring). Merryman contends that Dawson shows that

habeas petitioners in Texas “are not getting a fair chance to get their cases heard by T.C.C.A.”

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several construction projects he undertook as a general contractor. See id.

According to the state appellate court’s account, Merryman “obtained a series

of advance payments from the customers before failing to complete each

project.” Id. The State’s position was that “he never intended to finish the jobs

and acted pursuant to a scheme to misappropriate the customers’ money.” Id.

The case proceeded to trial before a jury, which returned guilty verdicts on all

six counts. Id. at 268. Merryman received concurrent sentences ranging from

two years of imprisonment to sixteen years of imprisonment and was ordered

to pay restitution. Id.

The Court of Appeals of Texas in San Antonio affirmed the trial court’s

judgments, rejecting, inter alia, Merryman’s contention that there was

insufficient evidence to establish that he held his customers’ property—here

money—as a fiduciary, as required to support his conviction for misapplication

of fiduciary property. Id. at 269-70. The court determined that evidence that

Merryman entered into agreements with his customers “as to [the] particular

course of action” of completing construction projects, along with testimony that

Merryman’s customers entrusted funds to him to be used to complete their

construction projects, was sufficient to establish that Merryman acted in a

fiduciary capacity. Id. at 270. In reaching its conclusion, the court dismissed

Merryman’s argument that he could not have acted in a fiduciary capacity

since the construction contracts at issue were intended to mutually benefit and

imposed obligations on both parties. Id.

Merryman’s petition for discretionary review was refused by the TCCA

on April 24, 2013. On or about August 20, 2014, Merryman applied for state

post-conviction relief. On December 10, 2014, the TCCA denied relief without

written order on the findings of the trial court and without a hearing. On or

about June 15, 2015, Merryman filed a second state post-conviction

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application. The TCCA dismissed the filing as a subsequent application by

order dated March 22, 2017.

Merryman filed his pro se § 2254 petition on April 5, 2017, the date he

verified he placed it in the prison mail system. See Houston v. Lack, 487 U.S.

266, 276 (1988). He claimed, among other things, that there was no evidence

that he held property as a fiduciary; that he was actually innocent of all three

counts of misapplication of fiduciary property; that he had been denied the

right to present a defense through his testimony; and that his trial counsel had

been ineffective in various respects.

The magistrate judge (“MJ”) ordered

Merryman to show cause why his § 2254 petition should not be dismissed as

time-barred.

Merryman responded to the MJ’s order with a lengthy filing in which he

asserted, as relevant here, that he was actually innocent. The Respondent—

Lorie Davis, Director of the Texas Department of Criminal Justice,

Correctional Institutions Division (“Respondent”)—answered the petition and

argued that Merryman’s § 2254 petition was time-barred; that Merryman had

not established his actual innocence; and that he was not entitled to equitable

tolling. Merryman replied that his actual innocence was established by various

documents pertaining to the construction projects he performed and, more

importantly for our purposes, by a change in state law established by the TCCA

in Berry v. Stale, 424 S.W.3d 579 (Tex. Crim. App. 2014).

The district court dismissed the § 2254 petition as time-barred. The

court determined that the one-year limitations period had expired before

Merryman filed his first state habeas application and that Merryman was not

entitled to equitable tolling,

The court further determined that the

untimeliness of the § 2254 petition should not be excused on account of

Merryman’s assertion of actual innocence. In this regard, the court noted only

that the records relied on by Merryman in support of his actual innocence claim

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No. 17-50914

concerned his own business dealings and therefore did not satisfy the requisite

of newly discovered evidence.

The district court denied Merryman’s

subsequent motion to amend or alter judgment under Federal Rule of Civil

Procedure 59(e) and further denied a COA. Merryman timely appealed. As

noted above, this court granted a COA, but only as to the issue of “whether, in

view of Berry, the district court erred in determining that Merryman had not

established a gateway claim of actual innocence.”

III.

On appeal from the denial of a § 2254 petition, we review a district court's

findings of fact for clear error and conclusions of law de novo. McCall v. Dretke,

390 F.3d 358, 362 (5th Cir. 2004). We apply the same standard of review to

the state court’s decision. Id. Pursuant to the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), a prisoner has one year from the latest of

several events to file a § 2254 petition.

See 28 U.S.C. § 2244(d)(l)(A)-(D).

Narrowing our view to the issue on which the COA was granted, we will

assume that the district court correctly determined that Merryman’s § 2254

petition was untimely and consider only whether the district court erred in

determining that Merryman did not establish a gateway claim of actual

innocence that would excuse the untimeliness of his petition.

IV.

A.

A freestanding claim of actual innocence is not cognizable on federal

habeas review. See Kinsel v. Cain, 647 F.3d 265, 270 n.20 (5th Cir. 2011) (citing

Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir. 2003)). However, in McQuiggin

v. Perkins, 569 U.S. 383, 386-87 (2013), the Supreme Court held that actual

innocence, if proven, serves as a gateway through which a prisoner may raise

§ 2254 claims despite expiration of the applicable limitations period under 28

U.S.C. § 2244(d).

The actual innocence gateway, first recognized by the

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No. 17-50914

Supreme Court in other contexts, is intended to avoid “fundamental

miscarriage [s] of justice” and “is grounded on the equitable discretion of habeas

courts to see that federal constitutional errors do not result in the incarceration

of innocent persons.”

Id. at 392 (internal quotation marks and citation

omitted).

Nevertheless, “tenable actual-innocence gateway pleas are rare.” Id. at

386. “To invoke the miscarriage of justice exception to AEDPA’s statute of

limitations ... a petitioner ‘must show that it is more likely than not that no

reasonable juror would have convicted him in the light of . . . new evidence.”’

Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).

The “new

evidence” must be “reliable evidence,” such as “exculpatory scientific evidence,

trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513

U.S. at 324. The Supreme Court has explained that “[t]he gateway should open

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.’” Perkins,

569 U.S. at 401 (quoting Schlup, 513 U.S. at 316).

B.

On appeal, Merryman, proceeding pro se, continues to assert that he is

actually innocent of the three convictions of misapplication of fiduciary

property because, given the TCCA’s holding in Berry regarding the definition

of “fiduciary,” there was no evidence that he acted in a fiduciary capacity.

Respondent argues that the Berry decision does not constitute “evidence” that

can support a gateway claim of actual innocence; that even if Berry is

“evidence,” it isn’t new evidence because it was available to Merryman to raise

in his first state habeas application; and that, to the extent the decision in

Berry can be “evidence,” it is not evidence of Merryman’s actual innocence

because Merryman’s case is factually distinguishable from Berry. As to the

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last point, Respondent argues that the contracts that underlie Merryman’s

convictions go beyond ordinary business relationships or ordinary business

dealings, such as the ones in Berry, because they are construction contracts

and impose a high standard of care with respect to handling customer

payments.

C.

Under Texas law, a person commits the offense of misapplication of

fiduciary property, in violation of Texas Penal Code § 32.45(b), “if he

intentionally, knowingly, or recklessly misapplies property he holds as a

fiduciary ... in a manner that involves substantial risk of loss to the owner of

the property or to a person for whose benefit the property is held.” Texas Penal

Code § 32.45(b); see also Ronk v. State, 250 S.W.3d 467, 470 (Tex. App.—Waco

2008, pet. refd.). In Berry, a case decided after Merryman’s direct appeal had

concluded, the TCCA interpreted § 32.45(b) and explained what it means to act

as a fiduciary for purposes of that statute. See 424 S.W.3d at 580. The TCCA

determined that acting in a fiduciary capacity “encompasses only special

relationships of confidence or trust in which one party is obligated to act

primarily for the benefit of the other.” Id. More specifically, the TCCA held

that “one acts in a ‘fiduciary capacity’ for purposes of the misapplication statute

if his relationship with another is based not only on trust, confidence, good

faith, and utmost fair dealing, but also on a justifiable expectation that he will

place the interests of the other party before his own.” Id. at 585. The TCCA

explained that “[t]o impose a fiduciary relationship in ordinary business

dealings would run contrary to the principle that a fiduciary is obligated to act

for the primary benefit of the other party.” Id. at 584. Considering these

definitions, the TCCA determined in Berry that the evidence was insufficient

to show that the defendant—a seller and installer of drapes and blinds—was a

fiduciary because he “had no special or confidential relationship with his

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No. 17-50914

customers beyond the usual contractual relationship that exists between any

seller and a buyer of goods.” Id. at 586.

D.

Initially, we point out that in Perkins, the Supreme Court stressed the

need to prove a gateway claim of actual innocence through new and reliable

evidence. See 569 U.S. at 386-87, 399, 401. The Berry decision clearly does not

constitute evidence under the traditional sense of the word. Merryman urges,

however, that Berry constitutes a change in state law post-conviction that

allows his actual innocence gateway claim to succeed, since he could not have

been convicted of misappropriating fiduciary property under the “new” law set

forth in Berry. This court has not addressed whether a subsequent change in

state law can be the foundation for a gateway actual innocence claim. Cases

decided by other appellate courts and even recent Supreme Court

jurisprudence suggest that a post-conviction change in the state law on which

the conviction was based could be a sufficient basis for a gateway actual

innocence claim. See Bousley v. United States, 523 U.S. 614 (1998); Phillips v.

United States, 734 F.3d 573 (6th Cir. 2013); Vosgien v. Persson, 742 F.3d 1131

(9th Cir. 2014). However, given that Merryman has not established a change

in state law, we need not and expressly do not reach that question here.

In Merryman’s direct appeal, the Court of Appeals of Texas in San

Antonio, relying on prior caselaw, stated:

[A] person acts in a fiduciary capacity within the context of section

32.45 when the business which he transacts, or the money or

property which he handles, is not his or for his own benefit, but for

the benefit of another person as to whom he stands in a relation

implying and necessitating great confidence and trust on the one

part and a high degree of good faith on the other part.

Merryman, 391 S.W.3d at 269 (internal quotation marks and citations

omitted).

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No. 17-50914

In Berry, the TCCA recognized that the appellate court—the same one

that considered Merryman’s appeal—used the definition of “fiduciary” cited

above in its analysis. 424 S.W.3d at 581. The TCCA then endorsed this

interpretation. Id. at 583, 585. Specifically, the court noted that “the court of

appeals cited the correct definition of ‘fiduciary’ in assessing the sufficiency of

the evidence to sustain [the] appellant’s conviction.” Id. at 586. However, the

TCCA found that the court of appeals had erred “in its application of that

definition to the facts of fthe] case ”

Id. (emphasis added).

Thus, Berry

expressly did not change the law regarding misapplication of fiduciary

property; and at most, with respect to Merryman’s case, Berry demonstrates a

misapplication by the state court of appeals of the law to the facts of

Merryman’s case. That is an insufficient basis for federal habeas relief. See

Charles v. Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011) (“A federal court lacks

authority to rule that a state court incorrectly interpreted its own law.”).

V.

In light of the foregoing, Merryman has not established a gateway claim

of actual innocence. The ruling of the district court is, therefore, AFFIRMED.

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