                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 16 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAMAUL MONK,                                     No. 10-55786

              Petitioner - Appellant,            D.C. No. 2:10-cv-01446-RSWL

 v.                                              MEMORANDUM*

TERRI GONZALEZ, Warden,

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Central District of California
             Ronald S.W. Lew, Senior District Court Judge, Presiding

                      Argued and Submitted on June 3, 2014.
                            San Francisco, California

Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District

Judge.**

      Jamaul Monk was convicted in 2005 of the gang-related shooting of Darryl

Bell in 2003, which left Bell paralyzed from the neck down. Bell identified Monk


      1*
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1 **
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
as the shooter, both before and during Monk’s two trials, the first of which ended

in a hung jury. Bell died prior to Monk’s sentencing in 2006.

      In 2010, Monk filed a pro se Petition For Writ Of Habeas Corpus By A

Person In State Custody pursuant to 28 U.S.C. § 2254 (§ 2254 Petition). The

district court dismissed Monk’s § 2254 Petition as untimely, rejecting Monk’s

argument that his “actual innocence” opened the gateway to consideration of his

untimely claims, pursuant to Schlup v. Delo, 513 U.S. 298 (1995). Monk appealed.

Monk was granted a certificate of appealability, see 28 U.S.C. § 2253(c)(3), with

respect to the following issue: “[W]hether appellant has made a credible claim of

actual innocence which excuses his untimely filing [of his § 2254 Petition].” We

affirm dismissal of Monk’s § 2254 Petition as untimely.

      1.     We must first determine what record we may consider on appeal. The

respondent has moved to strike Monk’s excerpts of record and brief on appeal, on

the ground that they contain numerous materials and arguments that were not

before the district court when it dismissed Monk’s § 2254 Petition. Monk asserts

that consideration of his additions is “mandatory” in an actual innocence case and

that we may take judicial notice of his additions in this case. We grant the

respondent’s motion to strike and deny Monk’s request that we consider his

additions to the record.


                                          2
      The general rule is that we will only consider on appeal those matters that

were, in fact, presented to the district court. Barcamerica Int’l USA Trust v.

Tyfield Importers, Inc., 289 F.3d 589, 595 (9th Cir. 2002); Lowry v. Barnhart, 329

F.3d 1019, 1024 (9th Cir. 2003); Fed. R. App. P. 10. This court’s decision in Lee

v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc), on which Monk relies, does

not make consideration of the additional materials that Monk has offered in

support of his actual innocence claim “mandatory.” See also Lowry, 329 F.3d at

1024 (recognizing a “mandatory” consideration exception). In Lee, we were not

presented with any evidence that had not been considered by the district court.

Compare Lee, 653 F.3d at 943 (identifying the “new” evidence), with Lee v.

Lampert, 607 F. Supp. 2d 1204, 1217 (D. Or. 2009) (same). Thus, when we stated,

“The habeas court [must] ‘consider[ ] all the evidence, old and new, incriminating

and exculpatory,’ admissible at trial or not,” to decide an actual innocence claim,

Lee, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538 (2006)), we meant

all of the evidence, old and new, put before the federal district court. We plainly

did not mean any and all evidence, old or new, that the petitioner might ever

discover or that had never been presented to the court below.

      Nor is taking judicial notice of the additions appropriate here. See Lowry,

329 F.3d at 1024 (also recognizing a “judicial notice” exception). The transcripts,


                                          3
affidavits, and interview statements on which Monk relies contain disputed factual

allegations, do not allow the ready determination of those factual disputes, may be

self-serving, and may contain hearsay. See Reina-Rodriguez v. United States, 655

F.3d 1182, 1193 (9th Cir. 2011) (transcripts); Henderson v. Oregon, 203 F. App’x

45, 52 (9th Cir. 2006) (affidavits and statements). Also, “the district court has not

had an opportunity to consider [documents issued only after its decision], and the

parties’ [new] arguments are not developed against the district court decision.”

Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 919

n.3 (9th Cir. 2006). Finally, Monk’s new arguments rely on additions to the

factual record beyond what the parties had developed below; to the extent that they

rely on the factual record that was developed in the state trial court, they do so in a

way that was not developed in the federal district court below; and consideration of

those arguments would prejudice the respondent, who has not had the opportunity

to develop the record below. See Dream Palace v. County of Maricopa, 384 F.3d

990, 1005 (9th Cir. 2004).

      2.a.   We answer “no” to the question, has Monk made a credible claim of

actual innocence that excuses his untimely filing of his § 2254 Petition? Monk

must support his actual innocence claim with “‘new reliable evidence’” that was

not presented at trial. Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 324). The


                                           4
only “new” evidence properly before us is the 2008 affidavit of Juan Rayford.

Monk contends that he only discovered that Rayford had pertinent information

when they were both serving time at the same prison. Monk does not meet the

“exacting standard” to show that this is an “extraordinary case” in which it is

probable that “‘reasonable, properly instructed jurors’” would acquit him in light

of Rayford’s affidavit. Id. (quoting House, 547 U.S. at 538); accord McQuiggin v.

Perkins, ___ U.S. ___, ___, 133 S. Ct. 1924, 1928 (2013). Rayford’s affidavit is

remote in time from the actual events it purports to describe, and there are no other

indicia of reliability, trustworthiness, or credibility to the affidavit. Specifically,

Rayford is serving sentences for multiple felony convictions; his affidavit is short,

conclusory, and lacking in details; his central assertion, that Bell told him someone

other than Monk shot Bell, is untrustworthy hearsay; the affidavit contradicts both

the evidence at Monk’s second trial and Monk’s own representations on this

appeal, specifically about whether B.I.G. and 2-1 were rival gangs; and Rayford’s

affidavit is contrary to Bell’s repeated identifications of Monk as the shooter.

       b.     Even if we were to consider all of the materials and arguments that

Monk offers on appeal, including a second affidavit, by Jermaine Marshall, the

result would be the same. Marshall’s 2011 affidavit, like Rayford’s, is

untrustworthy hearsay about what Bell purportedly told Marshall about the


                                             5
shooting, and it is remote in time from the actual events it purports to describe.

Also, neither Rayford nor Marshall offered his affidavit about what Bell

purportedly told him until Bell was conveniently dead. Thus, the “new” affidavits

by Marshall and Rayford are not probative of Monk’s actual innocence.1

      Monk relies on other purportedly new evidence in support of his actual

innocence claim, consisting of transcripts, affidavits, and interview statements.

This evidence is insufficient, because it depends upon disputed testimony and

disputed inferences known to Monk at the time of his second trial and disputed

inferences from unreliable evidence. See Lee, 653 F.3d at 938; Reina-Rodriguez,

655 F.3d at 1193; Henderson, 203 F. App’x at 52. Thus, it is not sufficient to meet

the “exacting standard” to show that this is an “extraordinary case” in which “‘it is

more likely than not that no reasonable juror would have convicted [Monk] in light




      1
         In his additional citations, Monk relies on our recent decision in Clark v.
Cate, ___ F. App'x ___, No. 11-55646, 2014 WL 2922654, *2 (9th Cir. June 27,
2014), as demonstrating the sufficiency of his “new evidence.” His reliance is
misplaced. In Clark, not only did the defendant’s wife report that a “reluctant”
trial witness had recanted his identification of the defendant at trial just a month
after the defendant’s sentencing, but the witness himself signed two affidavits
recanting his trial testimony within two years of the defendant’s sentencing. Thus,
the witness’s “multiple recantations of his trial testimony present[ed] a compelling
claim of actual innocence” in Clark. In contrast, the unreliable hearsay reports
here—that Bell told others that Monk was not the shooter—surfaced only after Bell
died and are far from compelling.
                                           6
of the new evidence.’” Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327);

accord McQuiggin, ___ U.S. at ___, 133 S. Ct. at 1928.

      AFFIRMED.




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