                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 10 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FRANCISCO OROSCO GARCIA,                         No.   15-16836

              Petitioner-Appellant,              D.C. No.
                                                 1:08-cv-01819-AWI-SAB
 v.

M. S. EVANS, Warden,                             MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                           Submitted October 18, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.

      Francisco Orosco Garcia (“Garcia”) appeals the district court’s denial of his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      First, the trial court’s use of modified jury instruction CALJIC No. 3.16 did

not result in a directed jury verdict against Garcia. The jury was not instructed that

Garcia was either a “principal” or an “aider and abettor” as a matter of law.

Rather, the jury was instructed that if the crimes were committed, Garcia was an

“accomplice” as a matter of law. An “accomplice” was defined as a person who

was “subject to prosecution” for the offense if he had aided or abetted the crime or

was part of a conspiracy to commit the crime. Accordingly, CALJIC No. 3.16

instructed the jury that Garcia was subject to prosecution, and not that Garcia was

necessarily guilty of the offenses. Garcia also points to CALJIC No. 3.14, which

provides that a person who assents to, aids, or assists in a crime without knowledge

of its unlawful purpose cannot be prosecuted as an accomplice. However, CALJIC

No. 3.14 does not define an accomplice to be any person who assents to, aids, or

assists in a crime with knowledge of unlawful purpose. Fairminded jurists could

disagree about whether use of CALJIC No. 3.16 by itself or in conjunction with

CALJIC No. 3.14 resulted in a directed guilty verdict against Garcia. See

Harrington v. Richter, 562 U.S. 86, 101 (2011) (“A state court’s determination that

a claim lacks merit precludes federal habeas relief so long as fairminded jurists

could disagree on the correctness of the state court’s decision.” (internal quotation

marks omitted)).


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      Second, Garcia’s opening brief discusses one issue not certified on appeal:

whether the district court’s denial of his request to amend his petition to include a

claim of actual innocence was rendered in error. We construe briefing on an

uncertified issue as a motion to expand the certificate of appealability (“COA”).

See 9th Cir. R. 22-1(e).

      Garcia does not dispute that the actual innocence claim was not raised before

the one-year statute of limitations imposed by the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1), had run on April

30, 2009. Garcia argues that his claim should be considered on the merits under

the “actual innocence” exception established by Schlup v. Delo, 513 U.S. 298

(1995).

      Garcia has not demonstrated that in light of all the evidence, it is more likely

than not that no reasonable juror would have found him guilty beyond a reasonable

doubt. See id. at 327. Declarations are not a strong form of evidence because “the

affiants’ statements are obtained without the benefit of cross-examination and an

opportunity to make credibility determinations.” See Herrera v. Collins, 506 U.S.

390, 417 (1993). Moreover, Garcia’s convictions were supported by substantial

testimony and physical evidence presented at trial. Garcia has failed to make the




                                           3
credible showing of actual innocence needed to excuse him from AEDPA’s statute

of limitations.

      Accordingly, Garcia has not made a substantial showing of the denial of a

constitutional right, as required to expand the COA. See 28 U.S.C. § 2253(c)(2).

      AFFIRMED.




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