Petition for Writ of Certiorari — David Pedder, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Case: 19-40091

Doi nit: 00515930940 Page: 1 Dar

ed: 07/08/2021

Mutter' tate Court of appeat5

for tbe Pith Circuit

United States Court of Appeals

Fifth Circuit

FILED

July 8, 2021

No. 19-40091

Summary Calendar

Lyle W. Cayce

Clerk

DAVID PEDDER,

Petitioner—Appellant,

versus

BOBBY LUMPKIN, Director, Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent—Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:16-CV-203

Before CLEMENT, HIGGINSON, and ENGELHARDT , Circuit Judges.

PER CURIAM:*

David Pedder, Texas prisoner # 01787993, appeals the time-bar

dismissal of his 28 U.S.C. § 2254 petition, wherein he raised, inter alia, a

claim that his trial counsel rendered ineffective assistance. Pursuant to this

* Pursuant to 5TH CIRCUIT RULE 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opinion should not be published and is not precedent except under the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 CIRCUIT RULE 47.5.4.

Append ix A

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No. 19-40091

court's order granting Pedder a certificate of appealability, he raises the

following three claims on appeal: (1) Whether, for purposes of the actual

Innocence gateway of McQuiggin v. Perkins, new evidence must be newly

discovered, previously unavailable evidence or if it includes reliable evidence

that was available but not presented at trial; (2) Whether his evidence

qualified as new; and (3) Whether the evidence was cumulative and whether,

in light of all the evidence, "it is more likely than not that no reasonable juror

would have" found him guilty. 569 U.S. 383, 386, 399 (2013) (internal

quotation marks and citation omitted).

Actual innocence, if proved, permits a first-time petitioner like Pedder

to overcome 28 U.S.C. § 2244(d)(1)'s limitations bar and initiate an untimely

§ 2254 proceeding. See Perkins, 569 U.S. at 386. To be credible, such claims

require "new reliable evidence." Floyd v. Vannoy, 894 F.3d 143, 155 (5th Cir.

2018) (internal quotation marks and citation omitted). Although the

Supreme Court has not yet defined the phrase for purposes of actual

innocence claims, and we have not decided whether it requires "newly

discovered, previously unavailable evidence, or, instead, evidence that was

available but not presented at trial," we do not decide the question here.

Hancock v. Davis, 906 F.3d 387, 389-90 & n.1 (5th Cir. 2018).

In support of his actual innocence claim, Pedder relies on numerous

affidavits as well as a diagram and photographs of the business where the

complainant testified that the assault occurred. The information contained

in the diagram, photographs, and affidavits was within reach of Pedder's

personal knowledge and reasonable investigation, particularly given his

working or family relationships with certain affiants and that he remained

employed at the business for the nearly two years that it took his case to go to

trial. See id. Furthermore, in addressing whether an actual innocence claim

is sufficient to overcome § 2244(d)(1)'s time bar, we have made no

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distinction between the treatment of ineffective assistance claims and other

claims. See id. at 389-90.

Because Pedder failed to support his actual innocence gateway claim

with new reliable evidence, the district court did not err in dismissing his

§ 2254 application as time barred. Accordingly, we do not address Pedder's

claims further.

In light of the foregoing, the judgment of the district court is

AFFIRMED.

3

Case 1:16-cv-00203-MAC-K,

Docurbent 21 Filed 01/24/19 Pag 4--of 9 PagelD #: 1408

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

DAVID PEDDER,

Petitioner,

versus

§

CIVIL ACTION NO. 1:16-CV-203

DIRECTOR, TDCJ-CID,

Respondent.

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOP

TING THE

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner, David Pedder, an inmate confined within the Texas Department

Justice, Correctional Institutions Division, through counsel, filed this petition

of Criminal

for writ of habeas

corpus pursuant to 28 U.S.C. § 2254.

The court referred this matter to the Honorable Keith Giblin, United States

Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and

Magistrate

orders of this court.

The Magistrate Judge recommends the petition be dismissed as time-barred.

The court has received and considered the Report and Recommendation of

Magistrate Judge filed pursuant to such referral, along with the record, and

pleadings. Petitioner

filed objections to the Magistrate Judge's Report and Recommendation. This

review of the objections in relation to the pleadings and the applicable law.

United States

requires a de novo

See FED. R. Clv. P.

72(b).

Petitioner challenges the Magistrate Judge's conclusions regarding the actual

gateway claim pursuant to McQuiggin v. Perkins, 569 U:S. 383 (2013).

Appendix B

innocence

Case 1:16-cv-00203-MAC-KFG DOCument 21 Filed 01/24/19 Page 2 of 9 _,gelD #: 1409

In McQuiggin, the Supreme Court held that a habeas petitioner can overcome the expiration

of the AEDPA statute of limitations by making a convincing show of actual innocence. Id. at 386.

A petitioner attempting to overcome the expiration of the AEDPA statute of limitations by showing

actual innocence is required to produce new evidence sufficient to persuade the district court that

"no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."

Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). To open the gateway to federal habeas

review, a petitioner asserting his actual innocence of the substantive offense must: (1) present

"new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence;" (2) "that was not presented at trial;" and (3) must show,

that in light of this new evidence, "it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt." House v. Bell, 547 U.S. 518, 537 (2006)

(citing Schlup, 513 U.S. at 299)).

The Magistrate Judge determined that the evidence relied upon is not "new" as it was

clearly substantially available at the time of trial. In addition, the Magistrate Judge found the

evidence put forth in the form of sixteen new affidavits was merely cumulative of the testimony

put forth by Mr. Freeman who testified at trial:

While the purported new evidence may have bolstered the testimony of Mr.

Freeman, the undersigned cannot find that.it is more likely than not that no

reasonable juror would have convicted petitioner in light of the new

evidence. During trial; the jury heard testimony from both Mr. Freeman

and the defendant that petitioner did not have a key to the building nor did

he have access to the alarm code during the time the incident allegedly

occurred. The jury also heard Mr. Freeman's testimony that he witnessed

the defendant and the victim sitting and waiting in the truck for him to

arrive and open the doors to the business. The jury heard this evidence and

apparently chose to reject it. Thus, because the additional sixteen affidavits

do not constitute new evidence, but reflect information that was otherwise

available and already presented to the jury, petitioner does not demonstrate

2

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Case 1:16-cv-00203-MAC-KFG Dnrient 21 Filed 01/24

shown that

actual innocence. The undersigned finds that petitioner has not

n.

petitio

2254

§

his actual innocence argument survives his untimely

Report and Recommendation, pgs. 9-10 (docket entry no. 14).

, even if this evidence was

The Court finds no error in this determination. Regardless

new evidence, no juror, acting

considered new, petitioner has not shown that in light of the

able doubt. McQuiggin, 569 U.S.

reasonably, would have voted to find him guilty beyond a reason

at 386 (quoting Schlup, 513 U.S. at 329)); see also

Bosley v. Cain, 409 F.3d 657, 664 (5th Cir.

e a showing that a reasonable doubt exists

2005) ("The Schlup standard ' does not merely requir

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

juror would have found the

rd is demanding. The gateway should

defendant guilty.") (emphasis added). "[T]he Schlup standa

open only when a petitioner 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

p, 513 U.S. at 316). At best,

nonharmless constitutional error." Id. at 400 (citing Schlu

petitioner's "new" evidence shows that a reasonable doubt could

have been found to exist; it fails,

however, to satisfy his burden of showing that no reasonable juror

would have found him guilty .1

Petitioner has failed to meet his burden under McQuiggin.

d to affidavits and includes

In addition, petitioner argues the new evidence is not limite

rdity of the complaint." Although

photographs and diagrams of the scene demonstrating the "absu

it appears petitioner attached the photographs and diagram to

his amended petition, he did not

have allowed petitioner's trial counsel to

Petitioner proceeds on the assumption that the trial court would

er did not have a key to the building and

petition

that

parade an additional five to sixteen witnesses to testify

victim the morning of the incident. Cf; TEx.

that they all observed petitioner waiting in the truck with the

probative value is substantially outweighed by

R. EvID. 403 ("The court may exclude relevant evidence if its

ing the issues, misleading the jury, undue

confus

ice,

a danger of one or more of the following: unfair prejud

added).

sis

(empha

ce.")

eviden

tive

delay, or needlessly presenting cumula

3

Case 1:16-cv-00203-MAC-KFC, acumen

t 21 Filed 01/24/19 Page

PagelD #: 1411

discuss the photographs and diagram in the anal

ysis of his actual innocence claim; there is no

reference to them. See Amended Petition, pgs,

18-22 (docket entr

y no. 5). Petitioner only

discussed sixteen new affidavits as evidence of

actual innocence. Id. This would be, in effec

t,

a late amendment which this Court will not allow

. See FED. R. CIV. P. 15(a)(2). Furthermore,

it would appear the photographs and diagrams as

they relate to petitioner's actual innocence claim

may not have been properly exhausted. A revie

w of petitioner's Original State Writ of Habeas

Corpus and First Amended State Writ of Habeas

Corpus reveals that petitioner only put forth five

new exculpatory affidavits as it relates to his actu

al innocence claim. See Original State Writ

(docket entry no. 12-27) and First Amended State

discussion of the photographs and diagrams as

Writ (docket entry no. 12-25). There is no

new evidence of actual innocence. Moo

re v.

Quarterman, 454 F.3d 484, 491 (5th Cir. 2006

) (to exhaust state remedies a habeas petitione

r

must fairly present "the substance of his claim

to the state courts."). Because of the late

amendment, however, this Court need not mak

e a determination as to proper exhaustion and a

potential procedural bar as it relates to the phot

ographs and diagrams. Regardless, despite the

improper amendment and assuming, without findi

ng, the photographs and diagrams have been

properly exhausted in state court, petitioner does

not demonstrate that with this new additional

evidence, no reasonable juror would have foun

d petit

ioner guilty beyond a reasonable doubt.

McQuiggin, 569 U.S. 383, 386 (2013).

Furthermore, petitioner has failed to demonstrate

the

state court's decision was contrary

to or involved the unreasonable application of fede

ral law, or that the state court's decision was

based upon an unreasonable determination in

light of the facts before the court. 28 U.S.C. §

2254(d); Harrington v. Richter, 562 U.S. 86, 102

4

(2011). "As amended by the AEDPA, §

Case 1:16-cv-00203-MAC-KFG Document 21 Filed 01/24

/19 Page 5 of 9 PagelD #: 1412

2254(d) stops short of imposing a complete bar on federal-court relitiga

tion of claims already

rejected in state proceedings." Id. at 102 (citation omitted). "It preserves author

ity to issue the

writ in cases where there is no possibility fairminded jurists could disagre

e." Id. Petitioner has

simply not met this burden and petitioner's claims are barred by

the applicable statute of

limitations.

Alternatively, petitioner requests an evidentiary hearing. Petitioner argues

declined to have an evidentiary hearing and merely adopted the State's

Conclusions of Law and, therefore, could not consider the credibility

the state court

Findings of Fact and

or strength of petitioner's

witnesses.

A court, however, shall not conduct an evidentiary hearing unless the

develop a claim in state court, provided that the claim relies on a new

petitioner failed to

rule of constitutional law

or on "a factual predicate that could not have been previously discov

ered through the exercise of

due diligence" and the facts would "establish by clear and convincing

evidence" the petitioner's

actual innocence. 28 U.S.C. § 2254(e)(2); see also Rules Governing

Section 2254 Cases 8(a).

Petitioner has failed to satisfy the statutory requirements. He has not

demonstrated the existence

of any factual dispute that warrant a federal evidentiary hearing.

Finally, petitioner alternatively requests a stay to file an out-of-time

PDR, arguing the

following:2

Under Texas law, appointed counsel has a duty to promptly and accura

tely

inform an appellant of the outcome of a direct appeal and of all his further

appellate options and their accompanying deadlines. Ex pane Wilson, 956

S.W.2d 25, 27 (Tex. Crim. App. 1997). Texas law allows a citizen

who

2

Petitioner argues he missed his deadline to file a petition for discretionary

review due to incorrect information

provided by appellate counsel. Objections, pg. 2 (docket entry no. 6).

5

Case 1:16-cv-00203-MAC-KFG"vocument 21 Filed 01/24/19 Page 6 ,.._/-PagelD #: 1413

did not timely file a Petition for Discretionary Review to utilize the State

Writ process and petition to file a Petition for Discretionary Review "out

of time" if not so informed. The Court of Criminal Appeals, however, will

not consider a State writ when a Federal writ is pending. Ex parte Soffar,

143 S.W .3d 804 (Tex. Crim. App. 2004).

The United States Supreme Court has determined, in States that permit an

"out of time" appellate review document to be filed and considered, that the

AEDPA deadline can be restarted. See Jimenez v. Quarterman, 555 U.S.

113 (2009) (A state court's grant of leave to file an out-of-time direct appeal

resets the date when the conviction becomes final § 2244(d)(1)). As such

assuming this Court declines to consider the McQuiggin arguments now

presented by Petitioner, he respectfully requests the Court grant a stay of

these proceedings so that the Texas Court of Criminal Appeals may

consider the possibility of granting an "out of time" Petition for

Discretionary Review.,

Objections, pg. 10 (docket entry no. 17).

As outlined by the Magistrate Judge, the decision in Jimenez v. Quarterman is narrow in

scope. 555 U.S. 113 (2009). In Jimenez, the Supreme Court held simply that the AEDPA

limitations period has not begun when an out-of-time appeal has been granted by the state court,

because finality under § 2244(d)(1)(A) "must reflect the conclusion of the out-of-time direct

appeal, or the expiration of the time for seeking review of that appeal." Id. at 121. Petitioner

overlooks the fact that the holding in Jimenez pertains only to the finality of the judgment and that

an out-of-time review only pushes back the finality date of a judgment when such review has

occurred before the filing a petition for writ of federal habeas corpus. Id. (emphasis added) ("[o]ur

decision today is a narrow one. We hold that, where a state court grants a criminal defendant the

right to file an out-of-time direct appeal during state collateral review, but before the defendant

has sought federal habea.s relief, his judgment is not yet "final" for purposes of §

2244(d)(1)(A)."). Indeed, the Court noted that its decision did not address whether Jimenez would

have been able to timely seek federal habeas relief after the one-year statutory period expired but

6

Case 1:16-cv-00203-MAC-KFG Document 21 Filed 01/24/19 Page 7 of 9 PagelD #: 1414

before the state court granted his motion to reopen direct review. Id. at 120, n.4. The Court

explained that such a petition would not be timely under § 2244(d)(1)(A) under its prior holding

"that the possibility that a state court may reopen direct review 'does not render convictions and

sentences that are no longer subject to direct review nonfinal."' Id.

Furthermore, it is likely an out-of-time PDR will be considered an abuse-of-the-writ and

be procedurally barred. The Texas Court of Criminal Appeals is the only court with jurisdiction

to consider a motion for an out-of-time appeal and it may only be pursued through a writ of habeas

corpus brought pursuant to 11.07 of the Texas Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. 11.07; bang v. State, 872 S.W.2d 694, 697 (Tex. Crim. App. 1993) (the TCCA

alone among the courts of Texas has authority to release from confinement persons who have been

finally convicted of felonies in this State) (citing TFx. CODE. CRIM. PROC. art. 11.07 § 3; Ex parte

Alexander, 685 S.W.2nd 57, 60 (Tex. Crim. App. 1985)) ("it is well established that only the

Court of Criminal Appeals possesses the authority to grant relief in a post-conviction habeas

corpus proceeding where there is a final felony conviction.").

Petitioner has already presented a state writ of habeas corpus before the Texas Court of

Criminal Appeals. Ex parte Pedder, No. 82, 450-01 (docket entry no. 12-27). Pursuant to the

Texas abuse-of-the-writ doctrine, it appears petitioner's second state habeas application to pursue

an out-of-time PDR would be barred by the Texas Court of Criminal Appeals. See ex parte

Whiteside, 12, S.W.3d 819, 821 (Tex. Crim. App. 2000) (article 11.07, section 4 of the Texas

Code of Criminal Procedure applies to all subsequent applications); Ex parte Barber, 879 S.W .2d

889, 891 n. 1 (Tex. Crim. App. 1994). The likely dismissal of petitioner's out-of-time PDR

renders petitioner's motion for stay futile.

7

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Finally, petitioner's reliance on Ex parte Soffar is misplaced. 143 S.W.3d 804 (Tex. Ct.

Crim. App. 2004). In that case, the Texas Court of Criminal Appeals held that the state court may

consider a successive application for a state writ of habeas corpus if the federal court with

jurisdiction over a parallel petition for a federal writ of habeas corpus enters an order staying its

proceedings to allow the federal petitioner to pursue his unexhausted claims in state court. Id.

(emphasis added). Petitioner's claims in the preset case, however, are exhausted but untimely.

Petitioner's request for a stay is denied.

ORDER

Accordingly, the objections of the plaintiff are OVERRULED. The findings of fact and

conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is

ADOPTED. A Final Judgment will be entered in this case in accordance with the Magistrate

Judge's recommendations.

In addition, the court is of the opinion petitioner is not entitled to a certificate of

appealability. An appeal from a judgment denying post-conviction collateral relief may not

proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard

for a certificate of appealability requires petitioner to make a substantial showing of the denial of

a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v.

Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, petitioner need not

establish that he would prevail on the merits. Rather, he must demonstrate that the issues are

subject to debate among jurists of reason, that a court could resolve the issues in a different

manner, or that the questions presented are worthy of encouragement to proceed further. See

Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability

8

Case 1:16-cv-00203-MAC-KFG Document 21 Filed 01/24

/19 Page 9 of 9 PagelD #: 1416

should be resolved in favor of petitioner, and the severity of the penalt

y may be considered in

making this determination. See Miller v. Johnson, 200 F.3d 274, 280-8,

1 (5th Cir.), cert. denied,

531 U.S. 849 (2000).

In this case, petitioner has not shown that the issues are subject to debate

among jurists of

reason or worthy of encouragement to proceed further. As a result, a certific

ate of appealability

shall not issue in this matter.

SIGNED at Beaumont, Texas, this 24th day of January, 2019.

'7Xstaet

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

9

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

DAVID PEDDER,

Petitioner,

versus

§

CIVIL ACTION NO. 1:16-CV-203

DIRECTOR, TDCJ-CID,

Respondent.

FINAL JUDGMENT

This action came on before the court, Honorable Marcia A. Crone, District Judge,

presiding, and the issues having been duly considered and a decision having been duly rendered,

it is

ORDERED and ADJUDGED that this petition for writ of habeas corpus filed pursuant

to 28 U.S.C. § 2254 is DISMISSED with prejudice as time-barred.

All motions by either party not previously ruled on are DENIED.

SIGNED at Beaumont, Texas, this 24th day of January, 2019.

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

Case: 19-40091

DP--Inent: 00515358194 Page: 1 DaukkFiled: 03/24/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-40091

DAVID PEDDER,

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 Eastern District of Texas

ORDER:

David Pedder, Texas prisoner # 01787993, seeks a certificate of

appealability (COA) from the dismissal of his 28 U.S.C. § 2254 petition as

barred by the statute of limitations. In the petition, Pedder raised

constitutional claims, arguing that his trial counsel rendered ineffective

( assistance and that the State violated Brady V. Maryland, 373 U.S. 83 (1963).

To obtain a COA, Pedder must make "a substantial showing of the denial

of a constitutional right." 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.

473, 483-84 (2000). Because the district court denied relief on procedural

grounds, this court will grant a COA only if reasonable jurists would debate

whether the district court's procedural ruling was correct and whether Pedder

states a valid claim of a constitutional deprivation. See Slack, 529 U.S. at 484.

Appendix C

e_

Case: 19-40091

Dr.-‘ment: 00515358194. Page: 2 Dat,\Filed: 03/24/2020

19-40091

Pedder has raised facially valid constitutional claims in arguing that the

State violated Brady and that his counsel rendered ineffective assist

ance. See

Brady, 373 U.S. at 83; Strickland v. Washington, 466 U.S. 668, 683-8

4 (1984).

A COA is granted on the following issues: (1) Whether, for purposes

of the

actual-innocence gateway of McQuiggin v. Perkins, 569 U.S. 383 (2013

), new

evidence must be newly discovered, previously unavailable evidence

or if it

includes reliable evidence that was available but not presented at trial,

see

Hancock v. Davis, 906 F.3d 387, 389-90. & ri.1 (5th Cir. 2018), cert. denie

d, 139

S. Ct. 2714 (2019); (2) whether Pedder's evidence qualified as new; and,

(3) _whether the evidence is cumulative and whether in light of

if so,

"all the

evidence, old and new, incriminating and exculpatory, without regar

d to

whether it would necessarily be admitted under rules of admissibil

ity that

would govern at trial," House v. Bell, 547 U.S. 518, 538 (2006)

(internal

quotation marks and citation omitted), "it is more likely than not

that no

reasonable juror would have found" Pedder guilty, Perkins, 569 U.S.

at 399

(internal quotation marks and citation omitted).

The clerk is directed to establish a briefing schedule, notify the

respondent that a COA has been granted, and include the respondent

in the

briefing schedule.

COA GRANTED; BRIEFING ORDERED.

STUART KYLE DUNCAN

UNITED STATES CIRCUIT JUDGE

2

ti