Britton v. Lehman

Full title: Scott Allen BRITTON, Petitioner--Appellant, v. Joseph LEHMAN, Secretary of…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 19, 2004

88 F. App'x 202 (9th Cir. 2004)

Opinion

Submitted February 13, 2004. ^*

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Eastern District of Washington, Justin L. Quackenbush, Senior Judge, Presiding.

Amy M. Schwering, Esq., Federal Public Defender's Office, Spokane, WA, Nancy D. Tenney, Esq., Federal Public Defender's Office, Seattle, WA, for Petitioner-Appellant.

Donna H. Mullen, Esq., Office of the Washington Attorney General, Olympia, WA, for Respondent-Appellee.

Before D.W. NELSON, KLEINFELD, and FISHER, Circuit Judges.

MEMORANDUM ^**

** 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.

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

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

Schlup allows a habeas court to reach the merits of a petitioner's procedurally 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

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).

Page 203.

not show that any reasonable juror would have reasonable doubt. Thus, he cannot pass through the Schlup gateway.

AFFIRMED.