Henry v. Pliler

125 F. App'x 205

Opinion

MEMORANDUM

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California state prisoner Stephen Anthony Henry appeals pro se the district court’s order dismissing his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo the dismissal of a § 2254 petition, see Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002), and we affirm.

Appellant contends that the district court erred in failing to warn him that he could amend his mixed habeas petition and request the court to hold it in abeyance while he attempted to exhaust his final claim. However, that contention is foreclosed by Pliler v. Ford, 542 U.S. 225, 124 S.Ct. 2441, 2447, 159 L.Ed.2d 338 (2004).

Appellant raises an actual innocence claim as an uncertified issue. We construe the claim as a motion to expand the certificate of appealability, and grant it. See 9th Cir. R. 22-1 (e). To the extent such relief may be available when a § 2254 petition is barred by the statute of limitations, see Majoy v. Roe, 296 F.3d 770, 778 (9th Cir. 2002), he fails to present sufficient evidence to show that it is more likely than not that no reasonable juror would have convicted him. See Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir.2002) (en banc) (citations omitted).

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.