                                                                           FILED
                            NOT FOR PUBLICATION                            MAR 12 2014

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



                            FOR THE NINTH CIRCUIT


BOBBY DARRELL COLBERT,                           No. 12-35441

              Petitioner - Appellant,            D.C. No. 2:11-cv-00076-RSM

  v.
                                                 MEMORANDUM*
STEVE SINCLAIR,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                           Submitted February 5, 2014**
                               Seattle, Washington

Before: FISHER, GOULD, and CHRISTEN, Circuit Judges.

       Bobby Darrell Colbert appeals from the district court’s denial of Colbert’s

motion under Federal Rule of Civil Procedure 60(b) to reconsider its denial of

Colbert’s petition for habeas corpus under 28 U.S.C. § 2254. We review a district


        *
             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).
court’s denial of a Rule 60(b) motion for abuse of discretion. Briones v. Riviera

Hotel & Casino, 116 F.3d 379, 380 (9th Cir. 1997)(per curiam). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

      The district court denied Colbert’s habeas corpus petition on the grounds

that his misjoinder claim had been procedurally defaulted in the state court. It then

denied his Rule 60(b) motion on the grounds that Colbert did not have good cause

for the procedural default of his claim and could not establish that the failure to

reach the merits of Colbert’s claim would cause a fundamental miscarriage of

justice. Finally, the district court entered an order granting a certificate of

appealability “on the issue of whether failure to consider Petitioner’s procedurally

defaulted misjoinder claim will result in a fundamental miscarriage of justice.”

      “Because [petitioner] has been unable to establish ‘cause and prejudice’

sufficient to excuse his failure to present his evidence in support of his first federal

petition, [petitioner] may obtain review of his constitutional claims only if he falls

within the narrow class of cases . . . implicating a fundamental miscarriage of

justice.” Schlup v. Delo, 513 U.S. 298, 314-15 (1995) (internal citation and

quotation marks omitted; ellipsis in original). “[T]he miscarriage of justice

exception is limited to those extraordinary cases where the petitioner asserts his

innocence and establishes that the court cannot have confidence in the contrary


                                            2
finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008)(emphasis

omitted). For such a claim to be credible, it must rely on “new reliable evidence . .

. that was not presented at trial.” House v. Bell, 547 U.S. 518, 537 (2006) (quoting

Schlup, 513 U.S. at 324). Colbert has presented no new evidence of his actual

innocence, as is required to show that the procedural default would constitute a

fundamental miscarriage of justice. We conclude that the district court did not

abuse its discretion in denying his motion under Rule 60(b).

      Colbert also argues that the certificate of appealability includes the issue of

cause and prejudice. We disagree in view of the language of the order. But even if

we were to consider cause and prejudice, 28 U.S.C. § 2254(b)(2) allows a district

court to deny a petition for habeas corpus on the merits without regard to whether

the claims have been exhausted in state court. Colbert has not shown that the

district court’s decision to do so in his case constituted cause for his subsequent

procedural default.1

      AFFIRMED.




      1
         Under Ninth Circuit Rule 22-1(e), we construe Colbert’s briefing of
uncertified issues as a motion to expand the Certificate of Appealability, and as so
construed, deny the motion. Colbert’s Motion to Supplement the Record Based on
Judicial Notice or Pursuant to FRAP 10(e) is denied.

                                           3
