Daniel Bluestein v. Jeri Taylor ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL WHITAKER BLUESTEIN, No. 18-35137
Petitioner-Appellant, D.C. No. 2:16-cv-01808-JE
v.
MEMORANDUM*
JERI TAYLOR, Superintendent, EOCI,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted December 12, 2018**
Before: FARRIS, TROTT, and TALLMAN, Circuit Judges.
Former Oregon state prisoner Daniel Bluestein appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition challenging
his 2007 jury conviction for rape, sodomy, and sexual abuse. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo a district court’s denial of a 28 U.S.C. 2254 habeas
petition as untimely. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Our
court has not yet decided whether we review actual innocence gateway claims de
novo or for abuse of discretion. Stewart v. Cate, 757 F.3d 929, 938-39 (9th Cir.
2014). We need not answer that question here because Bluestein has not made out
his claim under either standard.
We have considered all of the evidence proffered by Bluestein and agree
with the district court’s well-reasoned conclusion that he does not qualify for the
actual innocence gateway exception to excuse the untimely filing of his habeas
petition. On this record, Bluestein has not demonstrated that “it is more likely than
not that no reasonable juror would have convicted him in light of the new
evidence.” See McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup
v. Delo, 513 U.S. 298, 327 (1995)).
AFFIRMED.
2 18-35137