FILED
NOT FOR PUBLICATION MAR 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOBBY DARRELL COLBERT, No. 12-35441
Petitioner - Appellant, D.C. No. 2:11-cv-00076-RSM
v.
MEMORANDUM*
STEVE SINCLAIR,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Submitted February 5, 2014**
Seattle, Washington
Before: FISHER, GOULD, and CHRISTEN, Circuit Judges.
Bobby Darrell Colbert appeals from the district court’s denial of Colbert’s
motion under Federal Rule of Civil Procedure 60(b) to reconsider its denial of
Colbert’s petition for habeas corpus under 28 U.S.C. § 2254. We review a district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court’s denial of a Rule 60(b) motion for abuse of discretion. Briones v. Riviera
Hotel & Casino, 116 F.3d 379, 380 (9th Cir. 1997)(per curiam). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court denied Colbert’s habeas corpus petition on the grounds
that his misjoinder claim had been procedurally defaulted in the state court. It then
denied his Rule 60(b) motion on the grounds that Colbert did not have good cause
for the procedural default of his claim and could not establish that the failure to
reach the merits of Colbert’s claim would cause a fundamental miscarriage of
justice. Finally, the district court entered an order granting a certificate of
appealability “on the issue of whether failure to consider Petitioner’s procedurally
defaulted misjoinder claim will result in a fundamental miscarriage of justice.”
“Because [petitioner] has been unable to establish ‘cause and prejudice’
sufficient to excuse his failure to present his evidence in support of his first federal
petition, [petitioner] may obtain review of his constitutional claims only if he falls
within the narrow class of cases . . . implicating a fundamental miscarriage of
justice.” Schlup v. Delo, 513 U.S. 298, 314-15 (1995) (internal citation and
quotation marks omitted; ellipsis in original). “[T]he miscarriage of justice
exception is limited to those extraordinary cases where the petitioner asserts his
innocence and establishes that the court cannot have confidence in the contrary
2
finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008)(emphasis
omitted). For such a claim to be credible, it must rely on “new reliable evidence . .
. that was not presented at trial.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting
Schlup, 513 U.S. at 324). Colbert has presented no new evidence of his actual
innocence, as is required to show that the procedural default would constitute a
fundamental miscarriage of justice. We conclude that the district court did not
abuse its discretion in denying his motion under Rule 60(b).
Colbert also argues that the certificate of appealability includes the issue of
cause and prejudice. We disagree in view of the language of the order. But even if
we were to consider cause and prejudice, 28 U.S.C. § 2254(b)(2) allows a district
court to deny a petition for habeas corpus on the merits without regard to whether
the claims have been exhausted in state court. Colbert has not shown that the
district court’s decision to do so in his case constituted cause for his subsequent
procedural default.1
AFFIRMED.
1
Under Ninth Circuit Rule 22-1(e), we construe Colbert’s briefing of
uncertified issues as a motion to expand the Certificate of Appealability, and as so
construed, deny the motion. Colbert’s Motion to Supplement the Record Based on
Judicial Notice or Pursuant to FRAP 10(e) is denied.
3