Charles Shorb v. Mark Nooth ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES RAY SHORB, No. 17-35102
Petitioner-Appellant, D.C. No. 2:14-cv-02005-SB
v.
MEMORANDUM*
MARK NOOTH,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted May 17, 2018
Portland, Oregon
Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.
Charles Shorb appeals the district court’s denial of his petition for writ of
habeas corpus as untimely under 28 U.S.C. § 2244(d). We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. Shorb is not entitled to one court-day of equitable tolling. The prison
mail system delays and attorney error alleged do not amount to “extraordinary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
circumstance[s]” that prevented the timely filing of Shorb’s state petition for post-
conviction relief (“PCR”). Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). As for
the prison mail system, Shorb alleges only “delays inherent in the process of prison
communication,” which do not amount to an extraordinary circumstance. See
Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009). With respect to attorney error,
Shorb’s attorney’s decision to mail the signed PCR to the state court on the day it
was due at most constituted “garden variety” negligence rather than “egregious
professional misconduct.” Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015)
(citing Sandvik v. United States, 177 F.3d 1269, 1271–72 (11th Cir. 1999)).
Finally, because Shorb has not made any “allegation that would, if true, entitle him
to equitable tolling,” we decline to vacate the district court’s order and remand for
further factual development.1 Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir.
2003).
2. Shorb has not come forward with new evidence sufficient to trigger the
“actual innocence” exception to the statute of limitations. For the exception to
apply, a habeas petitioner must show that “it is more likely than not that no
reasonable juror would have convicted him in light of the new evidence.”
1
We do not consider Shorb’s allegation, made for the first time during oral
argument, that his former attorney affirmatively misled him as to the timely filing
of his habeas petition. See Recycle for Change v. City of Oakland, 856 F.3d 666,
673 (9th Cir. 2017).
2
McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo, 513 U.S.
298, 327 (1995)). The habeas court must consider “all the evidence, old and new,
incriminating and exculpatory, admissible at trial or not.” Lee v. Lampert, 653
F.3d 929, 938 (9th Cir. 2011) (internal quotation marks omitted).
Here, Shorb has failed to establish that no reasonable juror would have
convicted him of raping and sexually abusing his adoptive granddaughter, B.C., in
light of new polygraph and alibi evidence. The polygraph evidence is not
sufficiently reliable to support a claim of actual innocence on its own. See United
States v. Scheffer, 523 U.S. 303, 309 (1998) (“[T]here is simply no consensus that
polygraph evidence is reliable.”). Shorb fares no better when the polygraph
evidence is considered in combination with the purported alibi evidence that he
would often sleep during the daytime. Shorb’s new evidence must be weighed
against the trial evidence consisting of B.C.’s consistent testimony, which was
corroborated by her statements to police officers, a counselor, a Department of
Human Services worker, and a physician. In light of all the evidence, old and new,
Shorb has failed to demonstrate his actual innocence.
AFFIRMED.
3