                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 05 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



FREDERICK C. BRINKLEY,                           No. 09-17878

               Petitioner - Appellant,           D.C. No. 2:07-cv-01482-JLQ

  v.
                                                 MEMORANDUM *
BEN CURRY,

               Respondent - Appellee.



                    Appeal from the United States District Court
                         for the Eastern District of California
                  Justin L. Quackenbush, District Judge, Presiding

                          Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       California state prisoner Frederick C. Brinkley appeals pro se from the

district court’s order denying his 28 U.S.C. § 2254 habeas petition as untimely.

We have jurisdiction under 28 U.S.C. § 2253, and 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).
      Brinkley contends that he has made an adequate showing of actual

innocence to warrant consideration of the merits of his untimely petition. The

documents proffered by Brinkley do not demonstrate that it is “more likely than

not that no reasonable juror would have found him guilty beyond a reasonable

doubt.” See Lee v. Lampert, No. 09-35276, 2011 WL 3275947, at *6 (9th Cir.

Aug. 2, 2011) (an otherwise time-barred petition may only be heard on the merits

where the petitioner makes a sufficient showing of actual innocence).

      Because the evidence upon which Brinkley relies falls short of meeting the

Lee standard, the district court did not abuse its discretion in declining to hold an

evidentiary hearing. See Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir. 2000).

      Brinkley also suggests that his substantive actual innocence claim is timely

because his petition was filed within one year of the date on which the factual

predicate of his claim could have been discovered. Even giving Brinkley the

benefit of the doubt as to when he discovered the alleged confession by another

prisoner to his crime, however, his substantive actual innocence claim is untimely.

See 28 U.S.C. § 2244(d)(1)(D).

      Brinkley’s request for judicial notice, received on June 9, 2010, is deemed

filed and is denied.

      AFFIRMED.


                                           2                                     09-17878
