                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 10 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


QUINTIN ORRIN MORRIS,                            No. 13-55143

              Petitioner - Appellant,            D.C. No. 2:12-cv-06953-AHM-E

  v.
                                                 MEMORANDUM*
RICK HILL, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Alvin Howard Matz, District Judge, Presiding

                       Argued and Submitted March 3, 2015
                               Pasadena California

Before: REINHARDT, N.R. SMITH, and HURWITZ, Circuit Judges.

       Quintin Morris appeals from the district court’s order denying his petition

for a writ of habeas corpus and dismissing it without prejudice. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court dismissed Morris’ petition as a “second or successive”

habeas petition filed without the authorization of the court of appeals, as required

by the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. §

2244(b)(3)(A). Morris does not dispute that his petition failed to satisfy the

procedural requirements of 28 U.S.C. § 2244(b)(3)(A). Rather, he contends that

because he alleges a freestanding actual innocence claim, AEDPA’s restrictions on

second or successive petitions are unconstitutional as applied to him.

      Neither the Supreme Court nor the Ninth Circuit has determined whether a

freestanding claim of actual innocence is cognizable on federal habeas review,

although each court has assumed without deciding that such a claim is viable. See

McQuiggin v. Perkins, 133 S.Ct. 1924, 1931 (2013) (“We have not resolved

whether a prisoner may be entitled to habeas relief based on a freestanding claim of

actual innocence.”); Herrera v. Collins, 506 U.S. 390, 417 (1993) (assuming

without deciding that the execution of an innocent defendant would be

unconstitutional); accord id. at 419 (O’Connor, J., concurring); id. at 429 (White,

J., concurring); see also Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014) (“We

have not resolved whether a freestanding actual innocence claim is cognizable in a

federal habeas corpus proceeding in the non-capital context, although we have

assumed that such a claim is viable.”).


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      A showing for such a claim must be “extraordinarily high” and “truly

persuasive.” Herrera, 506 U.S. at 417; accord id. at 426 (O’Connor, J.,

concurring). We have said that, at a minimum, a petitioner “must go

beyond demonstrating doubt about his guilt, and must affirmatively prove that he is

probably innocent.” Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en

banc) (citing Herrera, 506 U.S. at 442-44 (Blackmun, J., dissenting)); accord

Jones, 763 F.3d at 1246.

      Here, we need not decide whether to recognize a freestanding actual

innocence claim, because even assuming that such a claim is cognizable in a non-

capital case, Morris has failed to satisfy this high standard. See Osborne v. Dist.

Atty’s’s Office for the Third Judicial Dist., 521 F.3d 1118, 1131 (9th Cir. 2008)

(“Herrera, House [v. Bell, 547 U.S. 518 (2006)], Carriger, and Jackson [v.

Calderon, 211 F.3d 1148 (9th Cir. 2000)] all support the practice of first resolving

whether a petitioner has made an adequate evidentiary showing of actual innocence

before reaching the constitutional question of whether freestanding innocence

claims are cognizable in habeas.”), rev’d on other grounds, 557 U.S. 52 (2009);

Jones, 763 F.3d at 1251.

      To demonstrate his innocence, Morris primarily relies upon the confession

of Howard Holt, a convicted felon serving three life sentences, one of them without


                                          3
the possibility of parole, and a consecutive term of 68 years. While a credible

confession by the actual perpetrator may affirmatively demonstrate actual

innocence, see Carriger, 132 F.3d at 477, Holt’s confession is not sufficiently

credible. Holt has nothing to lose by confessing. See House, 547 U.S. at 552

(confessions by inmates have less probative value than confessions by

“eyewitnesses with no evident motive to lie”). Moreover, Holt’s testimony at the

evidentiary hearing is inconsistent with his prior declarations in an important

respect. See Carriger, 132 F.3d at 477 (confession by purported perpetrator did

not affirmatively prove petitioner was actually innocent due to contradictions in his

story).

      Nor does Morris’ other new evidence adequately demonstrate his innocence.

The testimony of Claude Davis, Holt’s crime partner, that Holt committed the

crime is not sufficiently credible because his depositions are inconsistent with each

other and with Holt’s description of the route they took while driving away from

the crime scene. The testimony of Harlan Morgan, who was arrested with Morris,

that neither he nor Morris committed the crime does not sufficiently support

Morris’ claim because Morgan previously confessed to being an accessory after the

fact to Morris’ crime.




                                          4
      For all of these reasons, we find that Morris has failed to meet the

“extraordinarily high” standard of “affirmatively prov[ing] that he is probably

innocent.” Accordingly, his petition must be denied. In reaching this conclusion,

we do not express any view as to whether Morris is actually innocent. We simply

conclude that he does not meet the daunting requirements specified in the cases

that are currently binding on us.

AFFIRMED.




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