United States Court of Appeals

for the Fifth Circuit

No. 21-20501

Mike Mendoza, Jr., 

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 Southern District of Texas

No. 4:20-CV-3083

ON MOTION FOR RECONSIDERATION

AND REHEARING EN BANC

Before Southwick, Graves, and Costa, Circuit Judges.

Per Curiam:*

Because no member of the panel or judge in regular active service 

requested that the court be polled on rehearing en banc (Fed. R. App. P. 35 

* 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opinion should not be published and is not precedent except under the limited 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.

United States Court of Appeals

Fifth Circuit

FILED

August 25, 2022

Lyle W. Cayce

Clerk

Case: 21-20501 Document: 00516447049 Page: 1 Date Filed: 08/25/2022
No. 21-20501

2

and 5th Cir. R. 35), the petition for rehearing en banc is DENIED. 

Appellant’s motion for reconsideration is GRANTED. The prior order is 

withdrawn, and the following opinion is substituted:

Mike Mendoza, Jr., Texas prisoner # 1223739, moves for a certificate 

of appealability (COA) from the district court’s dismissal of his 28 U.S.C. 

§ 2254 petition as barred by the one-year statute of limitations set forth in 28 

U.S.C. § 2244(d). We DENY Mendoza’s motion.

In January 2003, Mendoza and several friends—all members of a gang 

called the Texas Syndicate—got into an altercation with Isaac Benavides at 

Benavides’ home. Benavides was beaten and repeatedly stabbed, leading to 

his death. Mendoza was indicted for the murder. Mendoza v. State, 2004 WL 

2538280 (Tex. App. Nov. 10, 2004). Before trial, the state trial court 

disqualified Mendoza’s counsel for also representing his brother, over 

Mendoza’s objection. Mendoza now complains that this disqualification 

upset his chosen trial strategy, prejudicing him. 

At trial, the State introduced testimony from several individuals 

present at the murder, including from some men who participated in the 

beating who then cooperated as witnesses for the State. Several witnesses 

testified that they saw Mendoza “jabbing” at Benavides. Mendoza, 2004 WL 

2538280, at *2. Another witness led the police to a knife he said Mendoza 

discarded after stabbing Benavides. The State also presented DNA evidence

showing that Benavides’ blood was found on the knife. A cooperating 

witness—the leader of the Texas Syndicate who participated in the beating—

wore a wire to secretly record a conversation, in Spanish, with Mendoza. The 

witness told Mendoza he heard that Benavides was stabbed 38 times, but 

Mendoza replied that he did not stab the complainant 38 times but had “hit” 

Benavides about four times. Id. at *5. The State showed a translated 

transcript of the conversation to the jury, over Mendoza’s objection. A jury 

Case: 21-20501 Document: 00516447049 Page: 2 Date Filed: 08/25/2022
No. 21-20501

3

convicted Mendoza of murder, and he was sentenced to life imprisonment. 

In November 2004, a Texas intermediate appeals court affirmed Mendoza’s 

sentence against Mendoza’s argument that the evidence was insufficient to 

support a guilty verdict. Id. at *6. Mendoza did not seek discretionary review 

with the Texas Court of Criminal Appeals. 

On December 2, 2020, Mendoza, acting pro se, filed this 28 U.S.C. 

§ 2254 petition challenging his murder conviction. He submitted various

filings from a 2009 federal prosecution against Mendoza and the Texas 

Syndicate. In addition to raising various constitutional claims, Mendoza 

argued that his petition was not time-barred because he had identified newly 

discovered evidence showing that he is innocent of the murder. The district 

court ordered him to show cause why his petition should not be dismissed as 

time barred. Mendoza conceded his petition was untimely but argued he was 

entitled to equitable tolling because his counsel abandoned him. Mendoza did 

not, however, further press his contention that newly discovered evidence 

showing his innocence gave the district court jurisdiction over this § 2254 

petition. 

The district court dismissed Mendoza’s § 2254 petition as time 

barred. It found his conviction was affirmed on November 4, 2004, and 

became final on December 4, 2004, when the time for seeking discretionary 

review had lapsed. The district court noted Mendoza did not show that state 

action impeded him from timely filing his federal petition under 28 U.S.C. 

§ 2244(d)(1)(B), that his petition was based on a newly recognized 

constitutional right under § 2244(d)(1)(C), or that § 2244(d)(1)(D) applied. 

It also found he did not show that he was entitled to equitable tolling of the 

limitations period. The district court further denied a COA. But the district 

court did not address Mendoza’s claim that newly discovered evidence 

demonstrates his innocence. 

Case: 21-20501 Document: 00516447049 Page: 3 Date Filed: 08/25/2022
No. 21-20501

4

Mendoza timely petitioned this court for a COA. We initially denied 

Mendoza a COA, noting that this petition is late and concluding that 

Mendoza forfeited his actual innocence argument by failing to raise it below. 

But under our liberal pro se pleading standards, Mendoza adequately raised 

his actual innocence claim before the district court—it was central to his 

petition even if he did not raise it in response to the district court’s show 

cause order. This claim is significant, as the Supreme Court has indicated 

that a colorable claim of actual innocence can, in rare situations, afford 

jurisdiction over an otherwise time-barred habeas petition. See Herrera v. 

Collins, 506 U.S. 390, 404 (1993); McQuiggin v. Perkins, 569 U.S. 383, 386 

(2013) (holding that “actual innocence, if proved, serves as a gateway 

through which a petitioner may pass [even if] the impediment is a procedural 

bar . . . or . . . expiration of the statute of limitations”). As a threshold matter, 

a credible gateway “claim [of actual innocence] requires [the] petitioner to 

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

that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). And 

Mendoza at least purported to show newly discovered evidence

demonstrating his innocence. The district court therefore should have 

addressed whether Mendoza’s actual-innocence argument enabled 

jurisdiction over this otherwise time-barred petition. 

But unless a COA issues, we lack jurisdiction to consider the merits of 

Mendoza’s petition. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). And we 

are unable to grant a COA merely on the issue of timeliness. See U.S. v. 

Castro, 30 F.4th 240, 244 (2022). Thus, because Mendoza’s habeas petition 

is indisputably late, he is only entitled to a COA if he identifies newly 

discovered, reliable exculpatory evidence and makes a substantial showing of 

a denial of a constitutional right. See Schlup, 513 U.S. at 324. Examples of 

“new reliable evidence” are “exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence.” Id. “The habeas court 

Case: 21-20501 Document: 00516447049 Page: 4 Date Filed: 08/25/2022
No. 21-20501

5

must make its determination concerning the petitioner’s innocence in light 

of all the evidence, including that alleged to have been illegally admitted . . . 

and evidence tenably claimed to have been wrongly excluded or to have 

become available only after the trial.” Id. at 328. We must “make a 

probabilistic determination about what reasonable, properly instructed jurors 

would do” after considering all of the evidence. Id. at 329.

As noted above, the gateway actual innocence standard is 

“demanding” and satisfied only in the “rare” and “extraordinary” case 

where “a petition 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 nonharmless constitutional error.” 

McQuiggin, 569 U.S. at 386, 401 (internal quotation marks and citations 

omitted). Mendoza has not made such a showing. First, much of the evidence 

to which he points is not new. He contends that a transcript of a recorded 

conversation between Mendoza and a confidential informant shows that the 

state’s witnesses admitted that the victim had a gun. But the record reveals 

that this information was available during Mendoza’s state criminal 

proceedings. Mendoza also complains that he was coerced into confessing by 

a confidential informant, who was also the leader of Mendoza’s gang. But this 

argument was available to Mendoza during his initial trial; his counsel 

unsuccessfully moved to suppress the statement on these grounds. Finally, 

Mendoza attaches information relating to DNA evidence and stab wounds. 

But this line of argument was raised and rejected in Mendoza’s direct appeal. 

See Mendoza, 2004 WL 2538280, at *5. Mendoza’s evidentiary arguments

thus all amount to an improper attempt to re-litigate the merits of the state

court proceedings. See Gonzalez v. Crosby, 545 U.S. 524, 532 (2005).

Mendoza’s most compelling claim is that he was denied the counsel 

of his choice. See United States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006); 

Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624–625 (1989). 

Case: 21-20501 Document: 00516447049 Page: 5 Date Filed: 08/25/2022
No. 21-20501

6

(“[T]he Sixth Amendment guarantees a defendant the right to be 

represented by an otherwise qualified attorney whom that defendant can 

afford to hire, or who is willing to represent the defendant even though he is 

without funds.”). Even assuming that Mendoza need not show newly 

discovered evidence for this claim, see Gomez v. Jaimet, 350 F.3d 673, 679–80

(7th Cir. 2003) (“[W]here the underlying constitutional violation claimed is 

the ineffective assistance of counsel premised on a failure to present 

evidence, a requirement that new evidence be unknown to the defense at the 

time of trial would operate as a roadblock to the actual innocence gateway”),

Mendoza cannot “establish by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have found [him] guilty 

of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii). Mendoza’s 

argument rests on an affidavit from his (now deceased) counsel of choice 

stating that “perhaps” Mendoza’s case “may have been different” had 

chosen counsel been permitted to represent him. Yet Mendoza’s complaints 

pertain almost entirely to his substitute counsel’s failure to impeach 

witnesses. Such failures do not amount to evidence of innocence “so strong” 

as to undermine confidence in the jury’s verdict. McQuiggin, 569 U.S. at 401.

Cf. Munchinski v. Wilson, 694 F.3d 308, 338 (3d Cir. 2012) (“[M]ere 

impeachment evidence is generally not sufficient to satisfy the [actual 

innocence gateway] standard.”).

Accordingly, Mendoza’s actual-innocence evidence, even if new, is 

not adequate to show that no reasonable juror would have convicted him. See 

McQuiggin, 569 U.S. at 399-400. He thus cannot overcome procedural 

default. Accordingly, Mendoza’s request for a COA is DENIED.

Case: 21-20501 Document: 00516447049 Page: 6 Date Filed: 08/25/2022