                                                                             FILED
                           NOT FOR PUBLICATION                                 JAN 13 2012

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



                           FOR THE NINTH CIRCUIT


ALBY ARDELL SMITH,                              No. 10-35679

              Petitioner - Appellant,           D.C. No. 3:08-cv-00312-HU

       v.
                                                MEMORANDUM*
GUY HALL,

              Respondent - Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                           Submitted January 10, 2012**
                               Seattle, Washington

Before: GRABER, FISHER and RAWLINSON, Circuit Judges.

      Alby Ardell Smith appeals the dismissal for procedural default of his 28

U.S.C. § 2254 habeas corpus petition challenging his 2001 conviction for murder

and arson. Smith concedes that he procedurally defaulted his claims of ineffective



        *
         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).
assistance of counsel, but contends that his default can be excused because he is

“actually innocent.” See Schlup v. Delo, 513 U.S. 298, 324 (1995).

      Schlup permits a federal court to consider a defaulted habeas claim if the

petitioner demonstrates his actual innocence. This requires a petitioner to come

forward with “new reliable evidence” of his actual innocence. Id. If the petitioner

satisfies this burden, the habeas court must then consider all the evidence, old and

new, and make a probabilistic determination about what reasonable, properly

instructed jurors would do. See Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011)

(en banc). The petitioner must “demonstrate that more likely than not, in light of

the new evidence, no reasonable juror would find him guilty beyond a reasonable

doubt.” House v. Bell, 547 U.S. 518, 538 (2006).

      Here, Smith may have satisfied the threshold requirement of coming forward

with “new reliable evidence.” Although much of his expert’s report is not

evidence or not new, other aspects of the report may offer new opinions on the

cause and circumstances of the fire.

      Even assuming that some of the evidence is new, Smith has not

demonstrated that no reasonable juror considering the old and new evidence would

find him guilty beyond a reasonable doubt. The opinions in his expert’s report are

either not evidence (because they are merely critiques of the prosecution’s closing


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argument), not new (because they rehash the expert’s testimony during trial),

cumulative (because they rehash other experts’ trial testimony) or otherwise of

minimal probative value. In his trial, the jury credited the prosecution’s theory of

the case over Smith’s version. The minimal new evidence offered by Smith does

not suggest that jurors would have reached a different result had they been

presented with this evidence along with the evidence already in the record. Smith

thus has not satisfied the requirements of the actual innocence exception.

      Smith also has not shown that the district court abused its discretion by

denying his motion for an evidentiary hearing. It is not an abuse of discretion to

deny an evidentiary hearing if the petitioner “has not established that an

evidentiary hearing would produce evidence more reliable or more probative than”

the evidence already before the district court. Griffin v. Johnson, 350 F.3d 956,

966 (9th Cir. 2003). Smith has made no showing that an evidentiary hearing

would produce anything other than a reiteration of the opinions already included in

his expert’s report. The district court therefore did not abuse its discretion.

      AFFIRMED.




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