FILED
NOT FOR PUBLICATION OCT 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSHAY JOHNSON, No. 10-16202
Petitioner - Appellant, D.C. No. 2:08-CV-00496-MCE-
KJM
v.
VIRNAL SINGH; MATTHEW L. CATE, MEMORANDUM*
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Junior, Chief District Judge, Presiding
Submitted October 8, 2013**
San Francisco, California
Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.
Oshay Johnson (“Johnson”) appeals the dismissal of his petition for writ of
habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Contrary to Johnson’s argument, the district court correctly concluded that
Johnson failed to present new reliable evidence. See Schlup v. Delo, 513 U.S. 298,
327 (1995). Likewise, the district court did not err in holding that Johnson’s four
claims of constitutional error at trial were legal arguments, and did not constitute
newly presented evidence of innocence. Accordingly, the district court did not
need to consider the new evidence or the four legal arguments along with evidence
presented at trial.
Johnson has failed to “show that it is more likely than not that no reasonable
juror would have convicted him in the light of . . . new evidence.” Id. Therefore,
the district court properly concluded that Johnson does not satisfy the actual
innocence exception to AEDPA’s statute of limitations. McQuiggin v. Perkins,
___ U.S. ___, 133 S.Ct. 1924, 1928 (2013).
This case need not be remanded for an evidentiary hearing (assuming 28
U.S.C. § 2254(e)(2) does not bar a hearing in this context), because Johnson has
failed to show that such a hearing would produce evidence establishing actual
innocence. Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003).
AFFIRMED.
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