                                                                           FILED
                           NOT FOR PUBLICATION                              APR 30 2013

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




                            FOR THE NINTH CIRCUIT



PAUL J. COX, Jr.,                                No. 11-56954

              Petitioner - Appellant,            D.C. No. 5:06-cv-00003-GHK-
                                                 MAN
  v.

KAREN MENDOZA POWERS, Warden                     MEMORANDUM *
Avenal State Prison, Substituted for Tom
L. Carey,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                     Argued and Submitted February 13, 2013
                              Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
      Petitioner Paul Cox, Jr. (“Cox”) was convicted of second degree murder and

sentenced to a term of fifteen years to life in state prison. Cox’s direct appeal and

first federal habeas petition were unsuccessful. We then granted Cox leave to file a

second or successive federal habeas petition in the district court asserting a claim

of actual innocence based on new evidence. The district court dismissed Cox’s

second petition. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

      1. The standard for filing a second or successive habeas petition is set forth

at 28 U.S.C. § 2244(b)(2)(B), which provides in relevant part that:

      [a] claim presented in a second or successive habeas corpus
      application under section 2254 . . . shall be dismissed unless . . . (ii)
      the facts underlying the claim, if proven and viewed in light of the
      evidence as a whole, would be sufficient to establish by clear and
      convincing evidence that, but for constitutional error, no reasonable
      factfinder would have found the applicant guilty of the underlying
      offense.1

       “Before filing a successive petition in the district court, 28 U.S.C. §

2244(b)(3) requires [a petitioner] to make a ‘prima facie showing’ to this court that

his petition would satisfy section 2244(b)(2).” Woratzeck v. Stewart, 118 F.3d

648, 650 (9th Cir. 1997) (per curiam); see also Stewart v. Martinez-Villareal, 523


      1
         28 U.S.C. § 2244(b)(2)(B)(i) requires a petitioner seeking to file a second
or successive petition to show that “the factual predicate for the claim could not
have been discovered previously through the exercise of due diligence.” The
district court assumed—and the government does not dispute—that Cox satisfied
this due diligence requirement.

                                           2
U.S. 637, 641 (1998). A “prima facie showing” in this Court is “a sufficient

showing of possible merit to warrant a fuller exploration by the district court.”

Cooper v. Woodford, 358 F.3d 1117, 1119 (9th Cir. 2004) (en banc) (quoting

Woratzeck, 118 F.3d at 650); see also Thompson v. Calderon, 151 F.3d 918, 925

(9th Cir. 1998). We previously determined that Cox made a prima facie showing

and granted him leave to file his second petition in the district court. That earlier

determination did not, as Cox argues, preclude the district court from nonetheless

dismissing his petition for failing to satisfy § 2244(b)(2). See 28 U.S.C. §

2244(b)(4); see also United States v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir.

2000).

         We review the district court’s dismissal of a second or successive habeas

petition de novo. Villa-Gonzalez, 208 F.3d at 1165. Cox asserts in his second

petition a claim of actual innocence based on newly discovered evidence. The

Supreme Court has, on several occasions, assumed, without expressly deciding,

that such a “freestanding” actual innocence claim is cognizable on federal habeas

review. See Herrera v. Collins, 506 U.S. 390, 417 (1993); House v. Bell, 547 U.S.

518, 554-55 (2006). In the absence of any governing Supreme Court precedent,

we also have assumed that freestanding actual innocence claims are cognizable on

federal habeas review, see, e.g., Carriger v. Stewart, 132 F.3d 463, 476-77 (9th


                                            3
Cir. 1997) (en banc); United States v. Berry, 624 F.3d 1031, 1038 n.5 (9th Cir.

2010), and that they may be brought in a second or successive petition under §

2244(b)(2), see Morales v. Ornoski, 439 F.3d 529, 533 (9th Cir. 2006). We so

assume here as well.

      The principal disputed issue at Cox’s trial—as to which the parties presented

conflicting eyewitness testimony—was whether the victim reached for a gun just

before Cox shot him. Although Cox’s new evidence might have bolstered his self-

defense argument, it is insufficient to satisfy § 2244(b)(2)(B)(ii). Viewing Cox’s

newly discovered evidence “in light of the evidence as a whole” and assuming that

the new witness was credible in the sense that he was stating what he believed he

saw, we cannot say that Cox has “clear[ly] and convincing[ly]” shown that no

reasonable factfinder would find him guilty. 28 U.S.C. § 2244(b)(2)(B)(ii).

Although there would then be directly contradictory eyewitnesses, the jury could

have continued to believe that the prosecution witness’ testimony was more

accurate than that of the defense witnesses.

      2. Nor was Cox entitled to an evidentiary hearing before the district court

dismissed his second petition. As we explained in Villa-Gonzalez, “summary

denial of [a successive petition] is proper when the [petition] and the files and

records of the case conclusively show that the prisoner’s [petition] does not meet


                                           4
the second or successive [petition] requirements.” 208 F.3d at 1165. Here, the

district court concluded that, even assuming Cox’s proffered eyewitness was

credible and told the truth as he perceived it, that evidence did not show, clearly

and convincingly, that a reasonable jury would not have convicted Cox.

Accordingly, the district court was not obligated to hold an evidentiary hearing on

Cox’s newly discovered evidence. See Schriro v. Landrigan, 550 U.S. 465, 474-75

(2007).

      AFFIRMED.




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