                             UNITED STATES DISTRICT COURT
                             EASTERN DISTRICT OF LOUISIANA

    JAMIL JOYNER                                                     CIVIL ACTION

    VERSUS                                                             NO. 16-16595

    JASON KENT                                                      SECTION: “J”(1)


                                       ORDER

          Before the Court is Petitioner Jamil Joyner’s Objections to the Magistrate’s

Report & Recommendation (Rec. Doc. 61). Petitioner objects to the Magistrate

Judge’s conclusions that he is not entitled to equitable tolling and that he failed to

establish his “actual innocence” as set forth in McQuiggin v. Perkins, 569 U.S. 383

(2013).

          First, Petitioner fails to address the Magistrate Judge’s conclusion that

equitable tolling does not apply because he did not file a protective federal habeas

petition and therefore was not prevented from asserting his rights. See Pace v.

DiGuglielmo, 544 U.S. 408, 416 (2005); Madden v. Thaler, 521 F. App’x 316, 323 (5th

Cir. 2013) (per curiam). As the Magistrate Judge found, “[i]f petitioner’s attorneys

had followed that procedure, the instant federal application would be timely.”1

Petitioner’s assertion that he was reasonably diligent because he followed up with

the Louisiana Supreme Court about his writ application on November 9, 2015, a

month after filing the application and over three weeks after the limitations period


1   (Rec. Doc. 56, at 10).
had expired on October 14, 2015, is likewise unavailing.2 The delivery problems

encountered by Petitioner on the day his writ application was due do not entitle him

to equitable tolling. See Johnson v. Quarterman, 483 F.3d 278, 287-88 (5th Cir. 2007).

        Petitioner next contends the Magistrate Judge improperly excluded from

consideration evidence that supported his actual innocence gateway claim on grounds

that the evidence was not “new.”                 While Petitioner maintains that Moore v.

Quarterman, 534 F.3d 454 (5th Cir. 2008), “is at odds with” Schlup v. Delo, 513 U.S.

298 (1995), and House v. Bell, 547 U.S. 518 (2006),3 this Court is obligated to follow

Fifth Circuit precedent. Additionally, Petitioner misreads Floyd v. Cain, No. 11-2819,

2016 WL 4799093 (E.D. La. Sept. 14, 2016), to suggest that the Court must consider

any and all evidence when evaluating an actual innocence gateway claim, regardless

of whether it meets the “new evidence” standard. Not so. First, the “petitioner [must]

support his allegations of constitutional error with new reliable evidence . . . that was

not dawnweeks@example.org.” Schlup, 513 U.S. at 324. “Evidence does not qualify as ‘new’

under the Schlup actual-innocence standard if ‘it was always within the reach of



2 The Court notes that, while the record reflects that counsel conferred with the court about whether
the filing would be rejected as deficient, it is not clear that counsel inquired about the timeliness of
the application. (Rec. Doc. 51, at 10; Rec. Doc. 61, at 9). Moreover, as the Magistrate Judge noted,
counsel received a letter from the Louisiana Supreme Court on October 8, 2015, indicating that
Petitioner’s writ application, due on October 2, 2015, was “received and filed on 10/7/2015.” (Rec.
Doc. 56, at 9). Any confusion about this language should have been addressed at that time, not a
month later, given the choice to wait until near the end of the federal limitations period before filing
the state post-conviction relief application. See Schmitt v. Zeller, 354 F. App’x 950, 952 (5th Cir. 2009)
(per curiam) (“[Petitioner’s] filing the state petition after squandering most of the year available under
Section 2244 is a factor in deciding whether equitable tolling should be allowed for problems that arise
in later filing the federal petition. Leaving little margin for error is incautious and not diligent.”).
3 (Rec. Doc. 61, at 14).




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[petitioner’s] personal knowledge or reasonable investigation.’” Hancock v. Davis,

906 F.3d 387, 390 (5th Cir. 2018) (quoting Moore, 534 F.3d at 465). Only then will

the Court consider this “new” evidence, as well as the “old”—i.e., the evidence

presented at trial—to determine whether it is “more likely than not, in light of the

new evidence, [that] no reasonable juror would find [the petitioner] guilty beyond a

reasonable doubt.” House, 547 U.S. at 538. Because much of the evidence Petitioner

submitted was not “new,” he was not entitled to have it considered by the Court in

evaluating his actual innocence gateway claim. See Hancock, 906 dawnweeks@example.org. As to

the only “new” evidence presented—the Walker affidavit—the Magistrate Judge did

not err in concluding that it was unreliable, see House, 547 U.S. at 552, or that it was

not sufficiently compelling to support his claim, see id. at 538. Accordingly,

      IT IS HEREBY ORDERED that Petitioner’s Objections to the Magistrate’s

Report and Recommendation (Rec. Doc. 61) are OVERRULED, and the Magistrate

Judge’s Report and Recommendation is ADOPTED as the opinion of the Court.

      IT IS FURTHER ORDERED that the federal application for habeas corpus

relief filed by Jamil Joyner is DISMISSED WITH PREJUDICE.

      New Orleans, Louisiana, this 8th day of August, 2019.




                                        __________________________________________
                                        CARL J. BARBIER
                                        UNITED STATES DISTRICT JUDGE


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