NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH CLARK, No. 18-55452
Petitioner-Appellant, D.C. No.
5:10-cv-01081-DMG-JCG
v.
MATTHEW CATE, Secretary, California MEMORANDUM*
Department of Corrections and
Rehabilitation,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted September 11, 2019
Pasadena, California
Before: OWENS, R. NELSON, and MILLER, Circuit Judges.
California state prisoner Kenneth Clark appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction
for second-degree murder. The district court rejected Clark’s argument that his
untimely petition should be reviewed on the merits because he passes through the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
actual innocence gateway. Because the parties are familiar with the facts, we do
not recount them here. We affirm.
“The standard of review for a Schlup claim is not entirely settled in this
circuit.” Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014). We need not
determine whether Schlup claims should be reviewed de novo or for abuse of
discretion, however, because Clark’s actual innocence claim fails under either
standard.
To pass through the actual innocence gateway, Clark must show it is “more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt[.]” House v. Bell, 547 U.S. 518, 538 (2006).
Here, Clark did not present “new reliable evidence,” Schlup v. Delo, 513 U.S. 298,
324 (1995), to overcome this “demanding” and “seldom met” standard.
McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (citation omitted).
Despite Monroe Thomas’s numerous recantations, his inconsistent
statements did not offer a “trustworthy eyewitness account[].” Schlup, 513 U.S. at
324. Because “[r]ecantation testimony is properly viewed with great suspicion,”
Clark has not proved it is more likely than not that no reasonable juror would credit
Thomas’s pre-trial statements and trial testimony over his recantations. Jones v.
Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (citation omitted).
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Clark also failed to prove that no reasonable juror would discount the
additional four eyewitnesses’ testimony. All four new eyewitnesses had a personal
connection to Clark, came forward eleven years after the crime, and offered
accounts of the shooting with some important inconsistencies.
Ultimately, although Clark presented a significant amount of new evidence,
the district court correctly concluded that the new evidence was not reliable, and
Clark therefore did not meet his burden to demonstrate it is more likely than not
that no reasonable juror would find him guilty beyond a reasonable doubt.
AFFIRMED.
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