Miller v. Miller-Stout

155 F. App'x 346

Opinion

MEMORANDUM

**

Timothy Charles Miller appeals from the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, Nardi v. Stewart, 354 F.3d 1134, 1140 (9th Cir. 2004), and we affirm.

Miller contends that he is entitled to equitable tolling because he was incapacitated for two six-month periods following assaults he suffered in custody. Even accepting Miller’s contention as true, we conclude that the petition was still untimely. See 28 U.S.C. § 2254(d). Because Miller has not shown that the factual predicate of the claims presented could not have been discovered earlier through the exercise of due diligence, Miller has not shown that the petition was timely pursuant to 28 U.S.C. § 2244(d)(1)(D).

Miller also contends that he is entitled to equitable tolling because he has acquired new evidence of “actual innocence.” This contention fails because Miller has not shown that the evidence was not previously available or that the evidence is “so strong that a court cannot have confidence in the outcome of the trial.” See Schlup v. Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).

Miller’s motion to expand the certificate of appealability is denied.

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 9th Cir. R. 36-3.