                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              DEC 15 2017

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


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   15-17137

              Plaintiff - Appellee,               D.C. No.
                                                  1:13-cv-00319-AWI
 v.

RAFAEL QUIROZ, aka Rafa,                          MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                   for the Eastern District of California, Fresno
                 Anthony W. Ishii, Senior District Judge, Presiding

                      Argued and Submitted December 6, 2017
                             San Francisco, California

Before: GRABER and N.R. SMITH, Circuit Judges, and ZIPPS** District Judge.

      Appellant Rafael Quiroz appeals the district court’s denial of his motion to

vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Quiroz asserts

that the district court erred in dismissing his freestanding actual innocence claim,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
and erred in denying his request for an evidentiary hearing. We have jurisdiction

under 28 U.S.C. § 1291 and § 2253(a), and we affirm.

      1. The district court did not err in dismissing Quiroz’s actual innocence

claim. Neither this circuit nor the Supreme Court has recognized freestanding

actual innocence claims as legally cognizable. McQuiggin v. Perkins, 569 U.S.

383, 392 (2013); Herrera v. Collins, 506 U.S. 390, 400 (1993); Jones v. Taylor,

763 F.3d 1242, 1246 (9th Cir. 2014). Even if an actual innocence claim is a

cognizable claim, and assuming that such a claim can be made by showing (by a

preponderance of the evidence) that a reasonable jury probably would not have

convicted Appellant in light of the new evidence, Quiroz’s new evidence fails to

meet even this most lenient potentially applicable standard.

      Neither the declaration of Quiroz’s brother, Roberto, nor Plancarte’s alleged

recantation is reliable evidence that would undermine the jury’s finding of guilt.

Roberto’s assertions that he was solely responsible for the methamphetamine

operations and that Quiroz resided in Mexico during those operations are not

credible in light of the trial record. Roberto’s claims are contradicted by Quiroz’s

own trial testimony, the testimony of other witnesses, and the documentary

evidence, including bank, real-property, and currency-exchange records. Notably,

Roberto’s declaration fails to demonstrate that he knew of Quiroz’s activities and


                                          2
whereabouts during the relevant time period.

       In addition, many of Roberto’s statements do not constitute new evidence.

The government already knew that Roberto was using Quiroz’s identification, and

the government identified those instances at trial, carefully distinguishing between

instances in which Quiroz used his own identification and those in which Roberto

used a false identification in Quiroz’s name.

      For the many reasons cited by the district court, we agree that Plancarte’s

alleged recantation also lacks reliability. Moreover, there is no reliable evidence

that Plancarte has recanted. Rather, Quiroz’s attorney has submitted a declaration

detailing statements Plancarte allegedly made to an unidentified relative.

      2. Finally, because Quiroz’s new evidence either was not new or was

unreliable, the district court did not abuse its discretion in denying Quiroz’s request

for an evidentiary hearing.

      AFFIRMED.




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