                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 23 2009

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




                            FOR THE NINTH CIRCUIT



DANNY CLAUDE COTTON,                              No. 08-17042

              Petitioner - Appellant,             D.C. No. 2:06-cv-01819-JAT

  v.
                                                  MEMORANDUM *
DORA SCHRIRO, Director; TERRY
GODDARD, Attorney General of the
State,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    James A. Teilborg, District Judge, Presiding

                      Argued and Submitted December 9, 2009
                             San Francisco, California

Before: COWEN,** GRABER, and BYBEE, Circuit Judges.

       Danny Cotton appeals the district court’s denial of his petition for a writ of

habeas corpus.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
             The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
      Cotton’s sole argument in his petition for a writ of habeas corpus—one that

he never raised in state court—is that he is actually innocent of the crime for which

he was convicted. Although Cotton’s actual innocence claim is unexhausted, we

affirm the judgment of the district court and deny Cotton’s petition because “‘it is

perfectly clear that [Cotton] does not raise even a colorable federal claim.’”

Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (quoting Granberry v. Greer,

481 U.S. 129, 135 (1987)); see 28 U.S.C. § 2254(b)(2).

      To establish his claim of actual innocence, Cotton relies on three recantation

affidavits and eight alibi affidavits. Because post-trial affidavits are “obtained

without the benefit of cross-examination,” Herrera v. Collins, 506 U.S. 390, 417

(1993), they “are to be treated with a fair degree of skepticism,” id. at 423

(O’Connor, J., concurring). Cotton’s affidavits are no exception. The recantation

affidavits emerged two, six, and ten years after Cotton’s trial, with “[n]o

satisfactory explanation . . . given as to why” the affiants waited so long to come

forward. Id. at 417. Montague’s affidavit is unreliable because the record supports

the state court’s conclusion that Montague was coerced into providing a similar

recantation affidavit before trial. Wright’s affidavit is hard to believe because he

says that he erred in identifying Cotton as the shooter despite the fact that Cotton is

his cousin. For similar reasons (Williams knew Cotton), we find unpersuasive

Williams’ much belated assertion that she “made a big mistake.” The alibi
affidavits are also unreliable; most of them are signed by then-eight-year-old

attendees at a birthday party with close to thirty kids in attendance. At best, the

affidavits, viewed as a whole, do nothing more than “undercut the evidence

presented at trial”; they do “not affirmatively . . . prove [Cotton’s] innocence.”

Carriger v. Stewart, 132 F.3d 463, 477 (9th Cir. 1997) (en banc).

      Because Cotton has not come close to making the “extraordinarily high”

showing required to establish a freestanding claim of actual innocence, see id. at

476, we need not decide whether such a claim is cognizable in a non-capital case,

or whether such a claim equitably tolls AEDPA’s statute of limitations, see 28

U.S.C. § 2244(d)(1); Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002) (“This

important legal question . . . is not appropriately addressed by us in a hypothetical

context.”).

      Finally, we treat Cotton’s presentation of uncertified issues as a motion to

expand the Certificate of Appealability, and we deny the motion. See 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

      AFFIRMED.
