Gregory Hermanski v. Isidro Baca , 649 F. App'x 386 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY SCOTT HERMANSKI, No. 14-15485
Petitioner - Appellant, D.C. No. 3:13-cv-00127-RCJ-VPC
v.
MEMORANDUM*
ISIDRO BACA; NEVADA ATTORNEY
GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted April 14, 2016**
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Gregory Scott Hermanski appeals the district court’s denial of his federal
petition for a writ of habeas corpus under 28 U.S.C. § 2254.1 We have jurisdiction
under 28 U.S.C. § 1291, and we affirm. Hermanski argues that the district court
erred by not considering the merits of his untimely petition because he made a
sufficient showing of actual innocence.
A petitioner is entitled to merits consideration of an untimely habeas petition
if he can “show that it is more likely than not that no reasonable juror would have
found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo,
513 U.S. 298, 327 (1995). A jury convicted Hermanski of armed robbery and
armed burglary. Before the district court, Hermanski offered an affidavit from a
fellow laborer who purported to be with Hermanski most of the day of the robbery,
but also admitted that he left Hermanski briefly around the time of the robbery.
This alibi witness stated that he did “not believe that [Hermanski] could have
robbed the motel during the time [he] was gone,” but did not provide an alibi for
Hermanski. The times used by the witnesses were approximates, cash and a knife
found on Hermanski matched those from the robbery, and the motel clerk
identified Hermanski as the assailant shortly after the robbery took place.
1
The parties are familiar with the facts, so we will not recount them
here.
2
Hermanski was not entitled to merits consideration of his untimely petition, even in
light of this new evidence.
Hermanski also argues that the district court should have ordered the full
trial court record and held an evidentiary hearing to determine the merits of his
claims. But our case law only requires such robust inquiry where the record shows
that “circumstances consistent with petitioner’s petition” would entitle him to
equitable tolling. See Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). No
such circumstances exist here.
AFFIRMED.
3