Strass v. Johnson

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.
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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,
Circuit Judges.
PER CURIAM:*
Paul Strass appeals a judgment dismissing
his 28 U.S.C. § 2254 habeas petition as time-
barred under 28 U.S.C. § 2244(d). Because
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,
and we therefore affirm.
* Pursuant to 5TH CIR. R. 47.5, the court has
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.

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2
I.
Strass pleaded guilty to aggravated sexual
assault, was sentenced, and did not appeal. He
filed two state applications for habeas relief,
followed by the instant § 2254 petition. The
district court correctly calculated that Strass’s
petition was filed over four months after the
applicable limitations period had expired, and
therefore dismissed his petition as time-barred.
The district court denied a certificate of ap-
pealability (“COA”), but we granted COA be-
cause Strass had made some showing that he
is actually innocent, and this court had not de-
termined whether actual innocence either equi-
tably tolls the limitations period or constitutes
an exception to the limitations bar.1
Strass’s conviction of aggravated sexual as-
sault requires that his victim be under the age
of fourteen. See TEX. PENAL CODE ANN.
§ 22.021(a)(2)(B). The indictment charges
that Strass sexually assaulted a “child . . . 14
years of age or younger” “on or about the 6th
day of June, . . . 1990.” Strass argues that he
is innocent of the crime of conviction because
police reports give the victim’s birth date as
February 8, 1976, making the victim more than
fourteen as of June 6, 1990.
II.
Strass tries to supplement the record with
evidence of the filing of a prior § 2254
petition, arguing that the additional tolling
would render timely the instant filing. We
granted COA only on Straus’s actual
innocence contention, and therefore his
supplemental issue is not before this court.
See United States v. Williamson, 183 F.3d
458, 464 n.11 (5th Cir. 1999); McBride v.
Johnson, 118 F.3d 432, 436 (5th Cir. 1997).2
The motion to supplement the record is
DENIED.
III.
We follow Lucidore v. New York State Div.
of Parole, 209 F.3d 107, 113-14 (2d Cir.
2000), in declining to decide whether actual
innocence is an exception to the § 2244(d)
limitations period where the petitioner has
failed to demonstrate actual innocence. To es-
tablish actual innocence, a petitioner must
demonstrate that “in light of all the evidence,
it is more likely than not that no reasonable
juror would have convicted him.” Bousley v.
United States, 523 U.S. 614, 623 (1998)
(internal quotation marks omitted); United
States v. Torres, 163 F.3d 909, 912 (5th Cir.
1999); Lucidore, 209 F.3d at 114. The
government is not limited to the existing
record to rebut any showing the petitioner
might make, and where the government has
forgone more serious charges in the course of
plea bargaining, the petitioner’s showing of
actual innocence must also extend to those
charges. See Bousley, 523 U.S. at 624; United
States v. Jones, 172 F.3d 381, 384 (5th Cir.
1999).
The State is not bound by the “on or about”
1 After granting a COA in this case, we held
that a claim of actual innocence does not warrant
equitable tolling where the defendant has not made
the requisite showing of actual innocence. See
Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.
2000).
2 Moreover, even were we to consider Strass’s
argument, the instant petition would be untimely,
because the duration of tolling remains insufficient,
and, more importantly, we have held that a prior
§ 2254 petition does not toll the § 2244(d)
limitations period. See Grooms v. Johnson, 208
F.3d 488 (5th Cir. 1999).

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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).

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