                           NOT FOR PUBLICATION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


                                          2
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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