William Weaver v. Attorney General of the State , 370 F. App'x 869 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM LARRY WEAVER, No. 08-36057
Petitioner - Appellant, D.C. No. 9:06-cv-00094-DWM
v.
MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF MONTANA; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted March 2, 2010
Portland, Oregon
Before: PAEZ, TALLMAN and M. SMITH, Circuit Judges.
William Larry Weaver filed a petition for federal habeas relief under the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) after the one-year
statute of limitations had run. 28 U.S.C. § 2244(d)(1). He argues that this court
can nonetheless hear his claims because he can establish his actual innocence,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
which he contends equitably tolls the statute of limitations. The district court held
that Weaver did not make a sufficient showing of actual innocence and accordingly
dismissed his petition as time-barred. We review de novo the district court’s
rulings on Weaver’s showing of actual innocence and on his entitlement to
equitable tolling. See House v. Bell, 547 U.S. 518, 539–40 (2006) (actual
innocence); Malcolm v. Payne, 281 F.3d 951, 955–56 (9th Cir. 2002) (equitable
tolling). We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Under Schlup v. Delo, a habeas petitioner can overcome a state procedural
bar to relief by making a “gateway” showing of “actual innocence.” 513 U.S. 298,
316 (1995). It is an open question in this circuit whether a showing of actual
innocence can similarly excuse a failure to comply with AEDPA’s one-year statute
of limitations. We do not resolve that question here, however, because we
conclude that Weaver has not made an adequate showing of actual innocence under
the Schlup standard.
Schlup allows a federal habeas petitioner to obtain review of procedurally
defaulted claims if he presents “new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial” and that establishes that “it is more
likely than not that no reasonable juror would have found petitioner guilty beyond
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a reasonable doubt.” Id. at 324, 327. Although Weaver offers some new evidence
tending to undercut the credibility of the state’s key witness against him and other
new evidence tending to corroborate others’ incriminating statements, this
evidence does not significantly differ from the evidence that the jury considered at
trial. We therefore conclude that this new evidence does not make it “more likely
than not that no reasonable juror” would have convicted him. Id. at 327. Even
considering the evidence that the district court declined to consider, we find that
Weaver cannot establish his actual innocence under Schlup. We therefore do not
reach Weaver’s claim that the district court improperly limited the scope of
evidence that he could present.
Because we deny Weaver’s gateway actual innocence claim, we do not reach
the government’s argument that the district court erroneously granted Weaver an
evidentiary hearing in contravention of 28 U.S.C. § 2254(e)(2).
AFFIRMED.
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