Erin Rieman v. Margaret Gilbert

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 27, 2021
• Docket: 20-35463
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIN DEAN RIEMAN, No. 20-35463

Petitioner-Appellant, D.C. No. 3:16-cv-05250-RBL

v. MEMORANDUM* MARGARET GILBERT,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted September 3, 2021 Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and RAKOFF,** District Judge.

Erin Rieman appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging his first-degree manslaughter conviction by plea under

North Carolina v. Alford, 400 U.S. 25 (1970). The parties are familiar with the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New York, sitting by designation. facts so we do not repeat them here. We have jurisdiction under 28 U.S.C. § 2253

and review de novo the district court’s dismissal and its findings of fact for clear

error. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003). We affirm.

To pass through the “gateway . . . to have his otherwise barred constitutional

claim considered on the merits,” Rieman must furnish “new reliable evidence”

showing that “it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298,

315, 324, 327 (1995). Although the new evidence concerning Walter Bremmer is

troubling, Rieman has not met the Schlup standard. Reasonable jurors might view

Rieman’s new testimony, inconsistencies in Bremmer’s testimony, and Bremmer’s

history of violence and strangulation and conclude that Rieman was not guilty

beyond a reasonable doubt. However, it is not more likely than not that no

reasonable juror would have convicted Rieman. See Johnson v. Knowles, 541 F.3d

933, 937 (9th Cir. 2008) (“[T]he miscarriage of justice exception is limited to those

extraordinary cases where the petitioner asserts his innocence and establishes that

the court cannot have confidence in the contrary finding of guilt.” (emphasis in

original)).

In particular, the prosecution originally charged Rieman as a principal or

accomplice with second-degree intentional and felony murder. The evidence does

not establish that it is more likely than not that no reasonable juror would have

2 convicted Rieman as an accomplice because, based on the testimony of both

Bremmer and Rieman, jurors could have believed that the two men killed Adkins

together. See Rev. Code Wash. 9A.08.020 (accomplice liability); Jaramillo v.

Stewart, 340 F.3d 877, 883 (9th Cir. 2003) (“[W]here the State has foregone more

serious charges in the course of plea bargaining, the petitioner’s burden of

demonstrating actual innocence must also extend to the more serious charges.”).

Because Rieman has not shown actual innocence, he has not avoided the

federal statute of limitations nor excused his state procedural default. See Lee v.

Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc). We do not need to reach the

merits of Rieman’s involuntary plea claim or decide whether 28 U.S.C. § 2254

bars review of the claim.

AFFIRMED.