                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 12 2010

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WILLIAM LARRY WEAVER,                            No. 08-36057

              Petitioner - Appellant,            D.C. No. 9:06-cv-00094-DWM

  v.
                                                 MEMORANDUM *
ATTORNEY GENERAL OF THE STATE
OF MONTANA; et al.,

              Respondents - Appellees.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                        Argued and Submitted March 2, 2010
                                 Portland, Oregon

Before: PAEZ, TALLMAN and M. SMITH, Circuit Judges.

       William Larry Weaver filed a petition for federal habeas relief under the

Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) after the one-year

statute of limitations had run. 28 U.S.C. § 2244(d)(1). He argues that this court

can nonetheless hear his claims because he can establish his actual innocence,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
which he contends equitably tolls the statute of limitations. The district court held

that Weaver did not make a sufficient showing of actual innocence and accordingly

dismissed his petition as time-barred. We review de novo the district court’s

rulings on Weaver’s showing of actual innocence and on his entitlement to

equitable tolling. See House v. Bell, 547 U.S. 518, 539–40 (2006) (actual

innocence); Malcolm v. Payne, 281 F.3d 951, 955–56 (9th Cir. 2002) (equitable

tolling). We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

      Under Schlup v. Delo, a habeas petitioner can overcome a state procedural

bar to relief by making a “gateway” showing of “actual innocence.” 513 U.S. 298,

316 (1995). It is an open question in this circuit whether a showing of actual

innocence can similarly excuse a failure to comply with AEDPA’s one-year statute

of limitations. We do not resolve that question here, however, because we

conclude that Weaver has not made an adequate showing of actual innocence under

the Schlup standard.

      Schlup allows a federal habeas petitioner to obtain review of procedurally

defaulted claims if he presents “new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial” and that establishes that “it is more

likely than not that no reasonable juror would have found petitioner guilty beyond


                                          2
a reasonable doubt.” Id. at 324, 327. Although Weaver offers some new evidence

tending to undercut the credibility of the state’s key witness against him and other

new evidence tending to corroborate others’ incriminating statements, this

evidence does not significantly differ from the evidence that the jury considered at

trial. We therefore conclude that this new evidence does not make it “more likely

than not that no reasonable juror” would have convicted him. Id. at 327. Even

considering the evidence that the district court declined to consider, we find that

Weaver cannot establish his actual innocence under Schlup. We therefore do not

reach Weaver’s claim that the district court improperly limited the scope of

evidence that he could present.

      Because we deny Weaver’s gateway actual innocence claim, we do not reach

the government’s argument that the district court erroneously granted Weaver an

evidentiary hearing in contravention of 28 U.S.C. § 2254(e)(2).

      AFFIRMED.




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