SAMUEL RICHMOND WALKER v. LORIE DAVIS DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE CORRECTIONAL INSTITUTIONS DIVISION (2017)

ORDER:

Samuel Richmond Walker, Texas prisoner # 1251415, was convicted by a jury of aggravated robbery and was sentenced to 45 years in prison. He seeks a certificate of appealability (COA) to appeal the district court's dismissal as untimely of his 28 U.S.C. § 2254 petition challenging this conviction. Walker contends that his conviction should not be considered final until 90 days after he learned that the Texas Court of Criminal Appeals (TCCA) refused his petition for discretionary review, which occurred five months after the actual denial. He seeks equitable tolling based on the lengthy delay in learning of the TCCA's procedural rejection of his first state postconviction application. Walker asserts that his instant petition should be considered filed as of January 2011 because it constitutes a “continuation” of his earlier § 2254 petition, which was dismissed without prejudice for a failure to exhaust. In addition, Walker argues that he is actually innocent of the offense, providing an avenue by which to bypass application of the limitations period.

In order to obtain a COA to appeal the denial of a § 2254 petition, the petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327. When the district court denies relief on procedural grounds, “a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Walker has not made the requisite showing. Consequently, his motion for a COA is DENIED.

EDWARD C. PRADO UNITED STATES CIRCUIT JUDGE