Strass v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m. 99-10780
Summary Calendar
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PAUL LEE STRASS,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(6:99-CV-50-C)
_________________________
July 25, 2000
Before SMITH, PARKER, and DENNIS, Paul Strass appeals a judgment dismissing
Circuit Judges. his 28 U.S.C. § 2254 habeas petition as time-
barred under 28 U.S.C. § 2244(d). Because
PER CURIAM:* Strass is unable to demonstrate actual
innocence, we need not decide whether actual
innocence either equitably tolls or is an
*
exception to the § 2244(d) limitations period,
Pursuant to 5TH CIR. R. 47.5, the court has
and we therefore affirm.
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I. supplemental issue is not before this court.
Strass pleaded guilty to aggravated sexual See United States v. Williamson, 183 F.3d
assault, was sentenced, and did not appeal. He 458, 464 n.11 (5th Cir. 1999); McBride v.
filed two state applications for habeas relief, Johnson, 118 F.3d 432, 436 (5th Cir. 1997).2
followed by the instant § 2254 petition. The The motion to supplement the record is
district court correctly calculated that Strass’s DENIED.
petition was filed over four months after the
applicable limitations period had expired, and III.
therefore dismissed his petition as time-barred. We follow Lucidore v. New York State Div.
The district court denied a certificate of ap- of Parole, 209 F.3d 107, 113-14 (2d Cir.
pealability (“COA”), but we granted COA be- 2000), in declining to decide whether actual
cause Strass had made some showing that he innocence is an exception to the § 2244(d)
is actually innocent, and this court had not de- limitations period where the petitioner has
termined whether actual innocence either equi- failed to demonstrate actual innocence. To es-
tably tolls the limitations period or constitutes tablish actual innocence, a petitioner must
an exception to the limitations bar.1 demonstrate that “in light of all the evidence,
it is more likely than not that no reasonable
Strass’s conviction of aggravated sexual as- juror would have convicted him.” Bousley v.
sault requires that his victim be under the age United States, 523 U.S. 614, 623 (1998)
of fourteen. See TEX. PENAL CODE ANN. (internal quotation marks omitted); United
§ 22.021(a)(2)(B). The indictment charges States v. Torres, 163 F.3d 909, 912 (5th Cir.
that Strass sexually assaulted a “child . . . 14 1999); Lucidore, 209 F.3d at 114. The
years of age or younger” “on or about the 6th government is not limited to the existing
day of June, . . . 1990.” Strass argues that he record to rebut any showing the petitioner
is innocent of the crime of conviction because might make, and where the government has
police reports give the victim’s birth date as forgone more serious charges in the course of
February 8, 1976, making the victim more than plea bargaining, the petitioner’s showing of
fourteen as of June 6, 1990. actual innocence must also extend to those
charges. See Bousley, 523 U.S. at 624; United
II. States v. Jones, 172 F.3d 381, 384 (5th Cir.
Strass tries to supplement the record with 1999).
evidence of the filing of a prior § 2254
petition, arguing that the additional tolling The State is not bound by the “on or about”
would render timely the instant filing. We
granted COA only on Straus’s actual
innocence contention, and therefore his
2
Moreover, even were we to consider Strass’s
1
After granting a COA in this case, we held argument, the instant petition would be untimely,
that a claim of actual innocence does not warrant because the duration of tolling remains insufficient,
equitable tolling where the defendant has not made and, more importantly, we have held that a prior
the requisite showing of actual innocence. See § 2254 petition does not toll the § 2244(d)
Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. limitations period. See Grooms v. Johnson, 208
2000). F.3d 488 (5th Cir. 1999).
2
date alleged in the indictment,3 and the
evidence demonstrates that Strass sexually as-
saulted multiple victims, including the victim
mentioned in the indictment, when each was
under fourteen years of age. The affidavit of
the victim named in the indictment discusses
sexual incidents occurring over a prolonged
period of time extending before his fourteenth
birthday, and affidavits of other victims were
sworn when the affiants were under fourteen.
Strass therefore fails to demonstrate actual
innocence.
AFFIRMED.
3
See Scoggan v. State, 799 S.W.2d 679, 680
n.3 (Tex. Crim. App. 1990) (“The State is not
bound by the date alleged in the indictment and
may prove that an offense was committed before,
on, or after [the] date alleged, so long as the date
proved is a date anterior to presentment of
indictment and the crime’s occurrence is not so
remote as to be barred by limitation.”); Walker v.
State, 4 S.W.3d 98, 104-05 (Tex. App.SSWaco
1999, pet. ref’d). Both requirements are satisfied
in the case sub judice: The date of offense is
before presentment of the indictment but within the
applicable 10-year limitations period, which runs
from the victim’s 18th birthday. See TEX. CRIM.
P. art. 12.01(5)(c).
3