Case: 19-50222 Document: 00515173589 Page: 1 Date Filed: 10/25/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-50222 FILED
October 25, 2019
Lyle W. Cayce
TERRY TRENTACOSTA, Clerk
Petitioner - Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-892
Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:*
Terry Trentacosta, Texas prisoner # 1535182, was convicted by a jury of
five counts of aggravated sexual assault and two counts of indecency with a
child and sentenced to a total of sixty years’ imprisonment. 1 In January 2019,
the district court dismissed Trentacosta’s years-late 28 U.S.C. § 2254 petition
as untimely and denied his subsequent Rule 59(e) motion to alter or amend the
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 Trentacosta v. State, No. 04-08-00805-CR, 2009 WL 2883024, at *1 (Tex. App. Sept. 9, 2009).
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No. 19-50222
judgment. Trentacosta now seeks a certificate of appealability (COA) on the
district court’s refusal to toll the statute of limitations or hold an evidentiary
hearing in light of his claim of actual innocence. Trentacosta contends that the
district court should have tolled the limitations period and reached the merits
of his underlying ineffective-assistance claim. He also seeks a COA on the
district court’s denial of his Rule 59(e) motion.
Actual innocence can serve as a gateway through which a petitioner may
raise § 2254 claims despite the expiration of the limitations period. 2 However,
actual-innocence claims require new, reliable evidence, such as “exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence.” 3 The petitioner must “persuade[] the district court that, in light of
the new evidence, no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” 4
Trentacosta’s arguments in support of a COA are conclusory and
unpersuasive. The affidavits he offers as “new evidence” attempt to impugn
the victim’s credibility and establish her motive to lie. Trentacosta does not
explain how this purportedly new evidence could demonstrate that no
reasonable juror would have convicted him. Especially given that the victim’s
testimony was corroborated by physical evidence, 5 reasonable jurists could not
debate either the district court’s actual-innocence determination or its denial
of an evidentiary hearing. 6 Moreover, because Trentacosta’s Rule 59(e) motion
merely rehashed his conclusory assertion of entitlement to an evidentiary
hearing on his claim of actual innocence, the district court did not err in
denying it.
2 See McQuiggin v. Perkins, 569 U.S. 383, 392–93 (2013).
3 Schlup v. Delo, 513 U.S. 298, 324 (1995).
4 Id. at 329.
5 See Trentacosta, 2009 WL 2883024, at *2.
6 See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
2
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Trentacosta’s motion for a COA is therefore denied, and the district
court’s denial of an evidentiary hearing is affirmed. 7
7 Because no COA requirement “exists for an appeal from the denial of an evidentiary hearing,”
we “construe [Trentacosta’s] request for a COA on this issue as a direct appeal from the denial of an
evidentiary hearing.” Norman v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016).
3