NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ERNEST H. BAKER, III, No. 15-35650
Petitioner-Appellant, D.C. No. 2:13-cv-01612-SI
v.
MEMORANDUM*
RICK COURSEY,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted October 4, 2016**
Portland, Oregon
Before: CLIFTON, MURGUIA, and NGUYEN, Circuit Judges.
Oregon state prisoner Ernest H. Baker, III, appeals the district court’s
judgment dismissing as untimely Baker’s second 28 U.S.C. § 2254 habeas petition
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
challenging his 2005 conviction, by no contest plea, for the second degree murder
of his infant son. We affirm.
Baker has failed to demonstrate “actual innocence” for purposes of excusing
procedural default of his habeas claims under Schlup v. Delo, 513 U.S. 298 (1995).
To support his claim of innocence, Baker submitted evidence purportedly
establishing that (1) Baker’s blood was not found on the murder weapon, victim, or
at the site of the murder; (2) the victim’s blood was found on the clothes of the
victim’s mother; (3) the victim’s mother made inconsistent statements regarding
the events surrounding the murder; (4) in an earlier incident, the victim’s mother
attempted to smother the victim with a pillow; and (5) the police engaged in
misconduct during the resulting homicide investigation, including coercing Baker
to make incriminating statements by denying him rest, food, and water during
questioning until he confessed to the murder. None of this evidence establishes that
petitioner was innocent or leads us to conclude that no reasonable juror would have
found him guilty. Schlup, 513 U.S. at 327. The evidence is consistent with the
evidence presented at the plea colloquy and does not conclusively rule out Baker’s
participation in the murder. For example, even if we accepted as credible the
statement by petitioner’s sister that she saw the victim’s mother put a pillow over
the victim’s head on some day before the murder, that suggests at most that there
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might have been another person motivated to kill the child. It does not, however,
conclusively establish that petitioner did not kill the child.
The district court did not abuse its discretion by declining to hold an
evidentiary hearing on Baker’s Schlup claims. The only potential witness that
petitioner identified apart from himself was his sister, and the district court
accepted the sister’s statement as credible, obviating the need for an evidentiary
hearing to determine witness credibility. See Stewart v. Cate, 757 F.3d 929, 941-42
(9th Cir. 2014).
AFFIRMED.
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