Britton v. Lehman

88 F. App'x 202

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 19, 2004
• Docket: No. 02-35988; D.C. No. CV-01-05052-JLQ
• Status: Published

Opinion

MEMORANDUM

**

Britton does not challenge the procedural bar to his petition, but argues instead that we should overlook it under Schlup v. Delo.1

Schlup allows a habeas court to reach the merits of a petitioner’s proeedurally barred claim “if he or she demonstrates ‘actual innocence.’ ”² To meet this test, the petitioner must introduce new evidence and show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”³ Britton’s new evidence offered in support of his theory that someone else committed the crimes for which he was convicted neither provides much support for that theory nor does anything to explain the evidence against Britton.⁴ At most, his evidence shows that a reasonable juror could have had a reasonable doubt about Britton’s guilt because of the thin evidence Britton proffered against the victim’s former girlfriend. His evidence does not show that any reasonable juror would have reasonable doubt. Thus, he cannot pass through the Schlup gateway.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

2 . Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir.2002).

3 . Schlup, 513 U.S. at 327, 115 S.Ct. 851.

4 . See Gandarela, 286 F.3d at 1086 (rejecting a Schlup-gateway argument and noting that the new evidence may have suggested alternative conclusions about what happened, but was not of a type that could explain the evidence against the petitioner).