                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 10 2010

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




                            FOR THE NINTH CIRCUIT



PAUL MICHAEL TEAHAN,                             No. 08-55608

               Petitioner - Appellant,           D.C. No. 3:07-cv-00586-WQH

  v.
                                                 MEMORANDUM *
V. M. ALMAGER; EDMUND G.
BROWN, Jr.,

               Respondents - Appellees.

                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                              Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       California prisoner Paul Michael Teahan appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. 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 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Teahan contends that new reliable evidence of actual innocence entitles him

to equitable tolling and excuses the untimely filing of his petition. Teahan bases

his claim of actual innocence primarily upon the unsworn alibi statements four

witnesses provided to a defense investigator during pre-trial investigation.

Assuming that the actual innocence gateway of Schlup v. Delo, 513 U.S. 298, 327

(1995), provides a basis for equitable tolling, Teahan has failed to show that, based

on this evidence, it is more likely than not that no reasonable juror would have

found him guilty beyond a reasonable doubt. See Smith v. Baldwin, 510 F.3d 1127,

1142 (9th Cir. 2007). Therefore, the district court did not err in dismissing his

petition as untimely.

      AFFIRMED.




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