Norman Powell v. Rick Walker , 685 F. App'x 594 ( 2017 )

FILED
NOT FOR PUBLICATION
MAR 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMAN T. POWELL, No. 14-16837
Petitioner-Appellant, D.C. No.
3:02-cv-00350-HDM-WGC
v.
RICK WALKER; FRANKIE SUE DEL ORDER
PAPA,
Respondents-Appellees.
Before: KOZINSKI, GILMAN* and FRIEDLAND, Circuit Judges.
The memorandum disposition filed December 15, 2016, is AMENDED as
reflected in the attached amended memorandum disposition. The petition for panel
rehearing or rehearing en banc is DENIED. No additional petitions for rehearing
are permitted.
*
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
NOT FOR PUBLICATION
MAR 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORMAN T. POWELL, No. 14-16837
Petitioner-Appellant, D.C. No.
3:02-cv-00350-HDM-WGC
v.
RICK WALKER; FRANKIE SUE DEL MEMORANDUM*
PAPA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted November 18, 2016
San Francisco, California
Before: KOZINSKI, GILMAN** and FRIEDLAND, Circuit Judges.
A federal court is barred from considering a habeas petition that is
procedurally defaulted under state law. See Coleman v. Thompson, 501 U.S. 722,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
page 2
750 (1991). A claim of actual innocence can overcome the procedural default. See
Schlup v. Delo, 513 U.S. 298, 321 (1995). The claim must rely on new evidence:
“Without any new evidence of innocence, even the existence of a concededly
meritorious constitutional violation is not in itself sufficient to establish a
miscarriage of justice that would allow a habeas court to reach the merits of a
barred claim.” Id. at 316. At oral argument, in response to a question about
whether he was relying on Herrera v. Collins, 506 U.S. 390 (1993), Powell
expressly disclaimed that he was making a standalone actual innocence claim.
Accordingly, we review only whether Powell has made a claim of actual innocence
as a gateway to overcome his procedural default.
An element of the statute under which Powell was convicted, Nevada
Revised Statutes § 202.287(1)(b), required the government to prove that there was
a local ordinance designating the area of the shooting as a populated area. Powell
argues that there was no such ordinance at the time of his conviction and points to
the preamble of a local ordinance passed in 1998 as new evidence of that fact. But
Powell’s argument using a law passed after his conviction is not “new
evidence”—it’s an argument. See Schlup, 513 U.S. at 324 (requiring “new reliable
evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not presented at trial” for gateway
page 3
innocence claims); cf. Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003)
(“[W]e hold that habeas petitioners may pass Schlup’s test by offering ‘newly
presented’ evidence of actual innocence.”). The preamble is also not a retroactive,
substantive change in the law. See Vosgien v. Persson, 742 F.3d 1131, 1134–35
(9th Cir. 2014) (“One way a petitioner can demonstrate actual innocence is to show
in light of subsequent case law that he cannot, as a legal matter, have committed
the alleged crime.” (citing Bousley v. United States, 523 U.S. 614 (1998))).
Therefore, we cannot consider Powell’s petition.
AFFIRMED.