                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 04 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JACOB RAMIE PRATT,                               No.   16-15505

              Petitioner-Appellant,              D.C. No.
                                                 3:15-cv-00279-MMD-VPC
 v.

TIMOTHY FILSON and NEVADA                        MEMORANDUM*
ATTORNEY GENERAL,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                        Argued and Submitted May 9, 2017
                              Pasadena, California

Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.

      Pratt appeals from the district court’s judgment dismissing his habeas corpus

petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      We review de novo a district court’s dismissal of a habeas corpus petition

under 28 U.S.C. § 2254 as untimely. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.

2010). Our court has not yet decided whether we review actual innocence gateway

claims de novo or for abuse of discretion. Stewart v. Cate, 757 F.3d 929, 938–39

(9th Cir. 2014). We need not answer that question here because Pratt has not made

out his claim under either standard.

      It is undisputed that Pratt filed this action outside the one-year statute of

limitations set by 28 U.S.C. § 2244(d)(1). Nonetheless, he argues that he qualifies

for the actual innocence gateway exception to the limitations period. See

McQuiggin v. Perkins, — U.S. —, 133 S. Ct. 1924, 1928 (2013). To make out an

actual innocence gateway claim, Pratt must present new evidence and “show that it

is more likely than not that no reasonable juror would have convicted him in the

light of the new evidence.” Id. at 1935, quoting Schlup v. Delo, 513 U.S. 298, 327

(1995).

      The parties disagree on what qualifies as “new evidence” for purposes of an

actual innocence gateway claim. The root of this disagreement is the Supreme

Court’s fragmented decision on the issue in Schlup. Although five justices joined

Justice Stevens’s opinion for the Court, Justice O’Connor, who joined the opinion,

also wrote a separate concurrence “to explain . . . what [she] underst[ood] the


                                           2
Court to decide and what it d[id] not.” 513 U.S. at 332. As relevant to this appeal,

Justice O’Connor’s concurrence differed from Justice Stevens’s opinion as to the

type of new evidence of innocence a petitioner must present to qualify for the

actual innocence gateway exception: while the plurality would require “newly

presented evidence,” see id. (emphasis added), Justice O’Connor understood the

Court’s holding to extend only to “newly discovered evidence,” id. (emphasis

added). Schlup therefore lacked a majority on this point, creating a “fragmented”

decision. See Marks v. United States, 430 U.S. 188, 193 (1977).

      We previously have held that “actual innocence claims require only ‘newly

presented’ evidence,” thus embracing the Schlup plurality’s standard. Griffin v.

Johnson, 350 F.3d 956, 962 (9th Cir. 2003). Recently, however, we re-examined

our method for interpreting fragmented Supreme Court decisions and adopted a

reasoning-based approach that looks to whether “one opinion is a logical subset of

other, broader opinions.” United States v. Davis, 825 F.3d 1014, 1020–21 (9th Cir.

2016) (en banc), quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en

banc). The Nevada Attorney General argues that, under this test, it is Justice

O’Connor’s concurrence that determines what new evidence a petitioner must

produce to invoke the actual innocence gateway exception.




                                          3
      This question of whether Davis displaced Griffin is one that our court will

need to address, but not today. Even if we were to assume, without deciding, that

the Schlup plurality’s newly presented evidence standard applies to actual

innocence gateway claims, the evidence that Pratt has produced is not nearly

sufficient to carry his burden.

      With respect to Pratt’s first-degree kidnapping conviction, he has produced

no new evidence whatsoever. He merely argues that he is not guilty because the

facts of the crime, which he admitted, do not support a finding that he kidnapped

the victim for the purpose of committing a robbery as the statute requires. See Nev.

Rev. Stat. § 200.310(1). This is a legal argument, not evidence. The actual

innocence gateway is therefore closed to Pratt on this conviction.

      Regarding the attempted murder conviction, Pratt offers only his own

testimony that he did not intend to kill the victim, and that he did not push her as

she said he did at sentencing. Assuming that Pratt would testify at trial, his

testimony would, at most, create a credibility dispute. A reasonable juror easily

could believe the victim’s account over Pratt’s, especially considering that Pratt

does not dispute that he (1) actively participated in robbing the victim, (2) kept her

in the backseat at knife point (after she had already been stabbed in the neck) as his

co-defendant drove the victim’s cab around the area while the two debated whether


                                           4
to kill her, and (3) forced her to climb out onto a tree overhanging the Truckee

River on threat of death, all while he was on “a 17-day drug runner.”

      Pratt’s assertion that the state’s presentence report (PSR) supports his

proffered testimony is exaggerated. The PSR was not included in the record before

the district court, but it would not change our decision even if we considered it.

According to the PSR, Pratt led the victim to a bridge where he made her climb

down to the tree “or he would kill her.” The victim then fell when the branch she

grabbed broke. Although this report may be consistent with Pratt’s account that he

wanted to allow the victim to climb to safety and still be able to tell his co-

defendant that he killed her, it also is consistent with an intent that the victim

plummet to her death from the tree (especially in light of Pratt’s threat to kill her if

she did not climb onto it). The PSR therefore does not enhance the credibility of

Pratt’s account.

      Pratt’s testimony would challenge the victim’s account of events, but we

disagree that “it is more likely than not that no reasonable juror would have

convicted him in the light of” that testimony. McQuiggin, 133 S. Ct. at 1935,

quoting Schlup, 513 U.S. at 327. Indeed, if a habeas petitioner’s own testimony

disputing that he committed the crime were enough to satisfy the actual innocence

gateway’s “exacting” standard, that gateway would be open in nearly every case,


                                            5
not “only in the ‘extraordinary’ case.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir.

2011) (en banc), quoting House v. Bell, 547 U.S. 518, 538 (2006).

      Accordingly, the district court correctly held that Pratt did not qualify for the

actual innocence gateway exception for either of his convictions and dismissed his

habeas petition as untimely. To the extent Pratt challenges the district court’s

denial of his motion for appointment of counsel, the district court did not abuse its

discretion because Pratt has not shown that “the circumstances of [his] particular

case indicate that appointed counsel is necessary to prevent due process

violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).

      AFFIRMED.




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