                                                                            FILED
                            NOT FOR PUBLICATION                             OCT 17 2013

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


OSHAY JOHNSON,                                   No. 10-16202

               Petitioner - Appellant,           D.C. No. 2:08-CV-00496-MCE-
                                                 KJM
  v.

VIRNAL SINGH; MATTHEW L. CATE,                   MEMORANDUM*

               Respondents - Appellees.


                    Appeal from the United States District Court
                        for the Eastern District of California
             Morrison C. England, Junior, Chief District Judge, Presiding

                            Submitted October 8, 2013**
                             San Francisco, California

Before: D.W. NELSON, M. SMITH, and IKUTA, Circuit Judges.

       Oshay Johnson (“Johnson”) appeals the dismissal of his petition for writ of

habeas corpus as untimely. We have jurisdiction pursuant to 28 U.S.C. §§ 1291

and 2253. We affirm.


        *
             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).
       Contrary to Johnson’s argument, the district court correctly concluded that

Johnson failed to present new reliable evidence. See Schlup v. Delo, 513 U.S. 298,

327 (1995). Likewise, the district court did not err in holding that Johnson’s four

claims of constitutional error at trial were legal arguments, and did not constitute

newly presented evidence of innocence. Accordingly, the district court did not

need to consider the new evidence or the four legal arguments along with evidence

presented at trial.

       Johnson has failed to “show that it is more likely than not that no reasonable

juror would have convicted him in the light of . . . new evidence.” Id. Therefore,

the district court properly concluded that Johnson does not satisfy the actual

innocence exception to AEDPA’s statute of limitations. McQuiggin v. Perkins,

___ U.S. ___, 133 S.Ct. 1924, 1928 (2013).

       This case need not be remanded for an evidentiary hearing (assuming 28

U.S.C. § 2254(e)(2) does not bar a hearing in this context), because Johnson has

failed to show that such a hearing would produce evidence establishing actual

innocence. Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003).

       AFFIRMED.




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