                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         MAR 20 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

HOLLINS TIZENO,                                  No.    15-56150

                Petitioner-Appellant,            D.C. No.
                                                 2:12-cv-05157-BRO-RNB
 v.

RAYMOND MADDEN, Warden,                          MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O’Connell, District Judge, Presiding

                        Argued and Submitted March 6, 2019
                               Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,**
Chief District Judge.

      Petitioner Hollis Tizeno appeals the district court’s order denying his

petition for writ of habeas corpus, arguing that the district court erred by raising

procedural default sua sponte and by finding that he failed to show actual



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dana L. Christensen, Chief United States District
Judge for the District of Montana, sitting by designation.
innocence to overcome procedural barriers pursuant to Schlup v. Delo, 513 U.S.

298 (1995). We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.

1.    We have held that the district court retains “discretion to raise procedural

default sua sponte if doing so furthers” the interests of comity, federalism, and

judicial efficiency, as long as the court “give[s] a petitioner notice of the

procedural default and an opportunity to respond to the argument for dismissal.”

Boyd v. Thompson, 147 F.3d 1124, 1127–28 (9th Cir. 1998).

      We find these interests furthered in this case. The California Supreme Court

cited In re Clark, 855 P.2d 729, 740–41 (Cal. 1993), in its summary denial of

Tizeno’s petition. As explained in Clark, that court has long imposed “the rule that

absent a change in the applicable law or the facts, [it] will not consider repeated

applications for habeas corpus presenting claims previously rejected,” and “refused

to consider newly presented grounds for relief which were known to the petitioner

at the time of a prior collateral attack on the judgment.” Id. at 740. We need not

determine whether the bar against piecemeal or successive petitions is an adequate

and independent state ground to find that the interests of comity and federalism are

furthered by raising the bar sua sponte. Judicial efficiency also supports raising the

procedural bar. In Tizeno’s opposition to the State’s motion to dismiss, he

specifically conceded that his claims are barred due to California’s procedural rules

regarding piecemeal presentation of claims. In fact, Tizeno cited Clark, quoting,


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“The petitioner cannot be allowed to present his reasons against the validity of the

judgment against him piecemeal by successive proceedings for the same general

purpose.” Id. at 741.

      Furthermore, Tizeno had proper notice and an opportunity to respond. In

addition to conceding that his petition was barred by California’s procedural rule

against piecemeal presentation of claims in a previous brief, Tizeno received notice

of the bar and its consequences when the magistrate judge filed his Report and

Recommendations with the district court. Tizeno then had the opportunity to

respond by filing objections to the magistrate judge’s findings. This is sufficient

under Boyd.1

2.    Even assuming we review a Schlup claim de novo, Tizeno fails to meet the

Schlup standard. “To be credible, such a[n actual innocence] claim requires

petitioner to support his allegations of constitutional error with new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence—that was not presented at trial.” Schlup,

513 U.S. at 324 (emphasis added). Tizeno presents only unreliable and incredible

evidence from a witness’s recantation testimony to establish actual innocence.



1
 Because we find the district court acted within its discretion in raising the
procedural bar, we do not address whether the State specifically raised the bar
against piecemeal or successive litigation when it generally raised Clark’s
untimeliness bar.

                                          3                                       15-56150
This cannot meet Schlup’s high standard. See id. at 321 (establishing that the

Schlup gateway is intentionally “‘rare’ and [] only [] applied in the ‘extraordinary

case’”).

      AFFIRMED.2




2
  We deny Tizeno’s motion to stay and remand the case. Even if his Brady claim
has merit, it faces the same procedural bars as his other claims, and remand would
therefore be futile.

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