                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 05 2011

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




                            FOR THE NINTH CIRCUIT



ROBERT L. WAHL, Jr.,                             No. 09-35353

               Petitioner - Appellant,           D.C. No. 3:06-cv-00810-KI

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Oregon state prisoner Robert L. Wahl, Jr. appeals from the district court’s

order dismissing his 28 U.S.C. § 2254 habeas petition. 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).
      Wahl contends that the district court erred in failing to reach the merits of

his procedurally defaulted claims because the new reliable evidence of “actual

innocence” under Schlup v. Delo, 513 U.S. 298, 327 (1995), excuses his default.

Wahl bases his claim of actual innocence on the victim’s written affidavit recanting

her accusations against him. Wahl 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 House v. Bell, 547 U.S. 518 (2006). Therefore,

the district court did not err in declining to reach the merits of the procedurally

defaulted claims.

      AFFIRMED.




                                           2                                     09-35353
