                                                                        FILED
                              NOT FOR PUBLICATION
                                                                        MAR 29 2017
                      UNITED STATES COURT OF APPEALS                 MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


NORMAN T. POWELL,                             No.    14-16837

                 Petitioner-Appellant,        D.C. No.
                                              3:02-cv-00350-HDM-WGC
 v.

RICK WALKER; FRANKIE SUE DEL                  ORDER
PAPA,

                 Respondents-Appellees.


Before:      KOZINSKI, GILMAN* and FRIEDLAND, Circuit Judges.

      The memorandum disposition filed December 15, 2016, is AMENDED as

reflected in the attached amended memorandum disposition. The petition for panel

rehearing or rehearing en banc is DENIED. No additional petitions for rehearing

are permitted.




      *
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               MAR 29 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


NORMAN T. POWELL,                                No.   14-16837

              Petitioner-Appellant,              D.C. No.
                                                 3:02-cv-00350-HDM-WGC
 v.

RICK WALKER; FRANKIE SUE DEL                     MEMORANDUM*
PAPA,

              Respondents-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                  Howard D. McKibben, District Judge, Presiding

                    Argued and Submitted November 18, 2016
                            San Francisco, California

Before:      KOZINSKI, GILMAN** and FRIEDLAND, Circuit Judges.

      A federal court is barred from considering a habeas petition that is

procedurally defaulted under state law. See Coleman v. Thompson, 501 U.S. 722,



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
                                                                                  page 2
750 (1991). A claim of actual innocence can overcome the procedural default. See

Schlup v. Delo, 513 U.S. 298, 321 (1995). The claim must rely on new evidence:

“Without any new evidence of innocence, even the existence of a concededly

meritorious constitutional violation is not in itself sufficient to establish a

miscarriage of justice that would allow a habeas court to reach the merits of a

barred claim.” Id. at 316. At oral argument, in response to a question about

whether he was relying on Herrera v. Collins, 506 U.S. 390 (1993), Powell

expressly disclaimed that he was making a standalone actual innocence claim.

Accordingly, we review only whether Powell has made a claim of actual innocence

as a gateway to overcome his procedural default.

      An element of the statute under which Powell was convicted, Nevada

Revised Statutes § 202.287(1)(b), required the government to prove that there was

a local ordinance designating the area of the shooting as a populated area. Powell

argues that there was no such ordinance at the time of his conviction and points to

the preamble of a local ordinance passed in 1998 as new evidence of that fact. But

Powell’s argument using a law passed after his conviction is not “new

evidence”—it’s an argument. See Schlup, 513 U.S. at 324 (requiring “new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial” for gateway
                                                                               page 3
innocence claims); cf. Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003)

(“[W]e hold that habeas petitioners may pass Schlup’s test by offering ‘newly

presented’ evidence of actual innocence.”). The preamble is also not a retroactive,

substantive change in the law. See Vosgien v. Persson, 742 F.3d 1131, 1134–35

(9th Cir. 2014) (“One way a petitioner can demonstrate actual innocence is to show

in light of subsequent case law that he cannot, as a legal matter, have committed

the alleged crime.” (citing Bousley v. United States, 523 U.S. 614 (1998))).

Therefore, we cannot consider Powell’s petition.


      AFFIRMED.
