Smith v. Schriro

238 F. App'x 215

Opinion

MEMORANDUM

**

Arizona state prisoner James Arthur Smith, Jr., appeals from the district court’s judgment dismissing as untimely his 28 U.S.C. § 2254 habeas corpus petition, which challenges his enhanced sentence for aggravated assault. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo the dismissal of a section 2254 petition on timeliness grounds, see Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir.2001), and we affirm.

Smith contends that the AEDPA’s one-year statute of limitations should be equitably tolled because he is actually innocent of a “dangerous crime against children,” as defined by Ariz.Rev.Stat. § 13-604.01. Even assuming the actual innocence gateway provides a basis for equitable tolling, see Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir.2002), Smith has presented no new evidence to support his claim. See House v. Bell, — U.S. -, 126 S.Ct. 2064, 2077-78, 165 L.Ed.2d 1 (2006) (holding that a credible gateway claim “requires new rehable evidence”); Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Moreover, after reviewing the record, we agree with the district court that Smith’s assault with a firearm is distinguishable from the “generalized unfocused conduct” described in State v. Williams, 175 Ariz. 98, 103, 854 P.2d 131 (1993). Because Smith has failed to present a credible claim of actual innocence, the district court properly dismissed the petition as untimely. See 28 (d)(1); House, 126 S.Ct. at 2077-78; Schlup, 513 U.S. at 324-27, 115 S.Ct. 851; Majoy, 296 F.3d at 776.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.