Salazar v. Lumpkin

Opinion

Case: 22-50325 Document: 00516828932 Page: 1 Date Filed: 07/21/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 22-50325 Summary Calendar FILED ____________ July 21, 2023 Lyle W. Cayce Paul Salazar, Clerk

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 Western District of Texas USDC No. 5:19-CV-1489 ______________________________

Before Haynes, Graves, and Duncan, Circuit Judges. Per Curiam: * This petition for writ of habeas corpus case involves Paul Salazar’s challenge to Texas convictions and sentences for continuous sexual abuse of a child and indecency with a child by exposure. The district court dismissed the case for failure to meet the one-year limitation period in 28 U.S.C. § 2244(d). Salazar sought a certificate of appealability (“COA”) from our _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-50325 Document: 00516828932 Page: 2 Date Filed: 07/21/2023

No. 22-50325

court asserting that, because he raised a substantial claim of ineffective assistance of trial counsel in his state collateral-review proceedings, during which he did not have counsel, the limitations should not apply. In so arguing, he relied upon the Supreme Court’s decision in Martinez v. Ryan, 566 U.S. 1, 17–18 (2012) (addressing procedural default issues of ineffective assistance of counsel, not the time bar). While other circuits had addressed the question of whether Martinez applies in this context, we had not done so at the time the case was presented for a COA. Thus, we granted a COA “on Salazar’s contention that the rule of Martinez applies to the statute of limitations.” However, our court recently held that Martinez is inapplicable to AEDPA’s limitations period. Moody v. Lumpkin, 70 F.4th 884, 892 (5th Cir. 2023). We are bound by that ruling. Accordingly, the petition for habeas relief is DENIED.