                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GREGORY SCOTT HERMANSKI,                         No. 14-15485

              Petitioner - Appellant,            D.C. No. 3:13-cv-00127-RCJ-VPC

 v.
                                                 MEMORANDUM*
ISIDRO BACA; NEVADA ATTORNEY
GENERAL,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                            Submitted April 14, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        Gregory Scott Hermanski appeals the district court’s denial of his federal

petition for a writ of habeas corpus under 28 U.S.C. § 2254.1 We have jurisdiction

under 28 U.S.C. § 1291, and we affirm. Hermanski argues that the district court

erred by not considering the merits of his untimely petition because he made a

sufficient showing of actual innocence.

        A petitioner is entitled to merits consideration of an untimely habeas petition

if he can “show that it is more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt.” Schlup v. Delo,

513 U.S. 298, 327 (1995). A jury convicted Hermanski of armed robbery and

armed burglary. Before the district court, Hermanski offered an affidavit from a

fellow laborer who purported to be with Hermanski most of the day of the robbery,

but also admitted that he left Hermanski briefly around the time of the robbery.

This alibi witness stated that he did “not believe that [Hermanski] could have

robbed the motel during the time [he] was gone,” but did not provide an alibi for

Hermanski. The times used by the witnesses were approximates, cash and a knife

found on Hermanski matched those from the robbery, and the motel clerk

identified Hermanski as the assailant shortly after the robbery took place.



        1
              The parties are familiar with the facts, so we will not recount them
here.

                                            2
Hermanski was not entitled to merits consideration of his untimely petition, even in

light of this new evidence.

      Hermanski also argues that the district court should have ordered the full

trial court record and held an evidentiary hearing to determine the merits of his

claims. But our case law only requires such robust inquiry where the record shows

that “circumstances consistent with petitioner’s petition” would entitle him to

equitable tolling. See Laws v. Lamarque, 351 F.3d 919, 924 (9th Cir. 2003). No

such circumstances exist here.

      AFFIRMED.




                                          3
