                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 16 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KENNETH CLARK,                                  No.    18-55452

                Petitioner-Appellant,           D.C. No.
                                                5:10-cv-01081-DMG-JCG
 v.

MATTHEW CATE, Secretary, California             MEMORANDUM*
Department of Corrections and
Rehabilitation,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                    Argued and Submitted September 11, 2019
                              Pasadena, California

Before: OWENS, R. NELSON, and MILLER, Circuit Judges.

      California state prisoner Kenneth Clark appeals from the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction

for second-degree murder. The district court rejected Clark’s argument that his

untimely petition should be reviewed on the merits because he passes through the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
actual innocence gateway. Because the parties are familiar with the facts, we do

not recount them here. We affirm.

      “The standard of review for a Schlup claim is not entirely settled in this

circuit.” Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014). We need not

determine whether Schlup claims should be reviewed de novo or for abuse of

discretion, however, because Clark’s actual innocence claim fails under either

standard.

      To pass through the actual innocence gateway, Clark must show it is “more

likely than not, in light of the new evidence, no reasonable juror would find him

guilty beyond a reasonable doubt[.]” House v. Bell, 547 U.S. 518, 538 (2006).

Here, Clark did not present “new reliable evidence,” Schlup v. Delo, 513 U.S. 298,

324 (1995), to overcome this “demanding” and “seldom met” standard.

McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (citation omitted).

      Despite Monroe Thomas’s numerous recantations, his inconsistent

statements did not offer a “trustworthy eyewitness account[].” Schlup, 513 U.S. at

324. Because “[r]ecantation testimony is properly viewed with great suspicion,”

Clark has not proved it is more likely than not that no reasonable juror would credit

Thomas’s pre-trial statements and trial testimony over his recantations. Jones v.

Taylor, 763 F.3d 1242, 1248 (9th Cir. 2014) (citation omitted).




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      Clark also failed to prove that no reasonable juror would discount the

additional four eyewitnesses’ testimony. All four new eyewitnesses had a personal

connection to Clark, came forward eleven years after the crime, and offered

accounts of the shooting with some important inconsistencies.

      Ultimately, although Clark presented a significant amount of new evidence,

the district court correctly concluded that the new evidence was not reliable, and

Clark therefore did not meet his burden to demonstrate it is more likely than not

that no reasonable juror would find him guilty beyond a reasonable doubt.

      AFFIRMED.




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