                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 14 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DANIEL WHITAKER BLUESTEIN,                      No.    18-35137

                Petitioner-Appellant,           D.C. No. 2:16-cv-01808-JE

 v.
                                                MEMORANDUM*
JERI TAYLOR, Superintendent, EOCI,

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael H. Simon, District Judge, Presiding

                          Submitted December 12, 2018**

Before: FARRIS, TROTT, and TALLMAN, Circuit Judges.

      Former Oregon state prisoner Daniel Bluestein appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition challenging

his 2007 jury conviction for rape, sodomy, and sexual abuse. 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 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).
      We review de novo a district court’s denial of a 28 U.S.C. 2254 habeas

petition 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 Bluestein has not made out

his claim under either standard.

      We have considered all of the evidence proffered by Bluestein and agree

with the district court’s well-reasoned conclusion that he does not qualify for the

actual innocence gateway exception to excuse the untimely filing of his habeas

petition. On this record, Bluestein has not demonstrated that “it is more likely than

not that no reasonable juror would have convicted him in light of the new

evidence.” See McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup

v. Delo, 513 U.S. 298, 327 (1995)).

      AFFIRMED.




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