                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 13 2010

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




                            FOR THE NINTH CIRCUIT



STEVEN BRENT DICK,                               No. 09-35739

              Petitioner - Appellant,            D.C. No. 6:07-cv-00538-AA

  v.
                                                 MEMORANDUM *
SHARON BLACKETTER,
Superintendent, Eastern Oregon
Correctional Institution,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                              Submitted May 5, 2010 **
                                 Portland, Oregon

Before: KOZINSKI, Chief Judge, KLEINFELD and IKUTA, Circuit Judges.


       Petitioner’s evidence as a whole is insufficient to pass through the Schlup

gateway, and therefore we may not reach the merits of his procedurally defaulted

        *
             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).
claims. See Schlup v. Delo, 513 U.S. 298, 327 (1995). The police report

describing the complaining witness’s experience at the home of Arturo Zamarripa

does not make it “more likely than not that no reasonable juror would have

convicted” Petitioner for sexual abuse. Id. Because the jury heard testimony

regarding the complaining witness’s grades and his parents’ divorce, the

complaining witness’s deposition testimony addressing these issues does not

constitute new evidence undermining the complaining witness’s credibility. See

id.; Cooper v. Brown, 510 F.3d 870, 884 (9th Cir. 2007). Our analysis of what a

“reasonable, properly instructed juror[] would do” in light of the new evidence is

not altered by the fact that two jurors at Petitioner’s trial voted to acquit. House v.

Bell, 547 U.S. 518, 538 (2006).

      AFFIRMED.
