Jacob Pratt v. Timothy Filson , 705 F. App'x 523 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 04 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB RAMIE PRATT, No. 16-15505
Petitioner-Appellant, D.C. No.
3:15-cv-00279-MMD-VPC
v.
TIMOTHY FILSON and NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted May 9, 2017
Pasadena, California
Before: WALLACE, CHRISTEN, and WATFORD, Circuit Judges.
Pratt appeals from the district court’s judgment dismissing his habeas corpus
petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review de novo a district court’s dismissal of a habeas corpus petition
under 28 U.S.C. § 2254 as untimely. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.
2010). Our court has not yet decided whether we review actual innocence gateway
claims de novo or for abuse of discretion. Stewart v. Cate, 757 F.3d 929, 938–39
(9th Cir. 2014). We need not answer that question here because Pratt has not made
out his claim under either standard.
It is undisputed that Pratt filed this action outside the one-year statute of
limitations set by 28 U.S.C. § 2244(d)(1). Nonetheless, he argues that he qualifies
for the actual innocence gateway exception to the limitations period. See
McQuiggin v. Perkins, — U.S. —, 133 S. Ct. 1924, 1928 (2013). To make out an
actual innocence gateway claim, Pratt must present new evidence and “show that it
is more likely than not that no reasonable juror would have convicted him in the
light of the new evidence.” Id. at 1935, quoting Schlup v. Delo, 513 U.S. 298, 327
(1995).
The parties disagree on what qualifies as “new evidence” for purposes of an
actual innocence gateway claim. The root of this disagreement is the Supreme
Court’s fragmented decision on the issue in Schlup. Although five justices joined
Justice Stevens’s opinion for the Court, Justice O’Connor, who joined the opinion,
also wrote a separate concurrence “to explain . . . what [she] underst[ood] the
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Court to decide and what it d[id] not.” 513 U.S. at 332. As relevant to this appeal,
Justice O’Connor’s concurrence differed from Justice Stevens’s opinion as to the
type of new evidence of innocence a petitioner must present to qualify for the
actual innocence gateway exception: while the plurality would require “newly
presented evidence,” see id. (emphasis added), Justice O’Connor understood the
Court’s holding to extend only to “newly discovered evidence,” id. (emphasis
added). Schlup therefore lacked a majority on this point, creating a “fragmented”
decision. See Marks v. United States, 430 U.S. 188, 193 (1977).
We previously have held that “actual innocence claims require only ‘newly
presented’ evidence,” thus embracing the Schlup plurality’s standard. Griffin v.
Johnson, 350 F.3d 956, 962 (9th Cir. 2003). Recently, however, we re-examined
our method for interpreting fragmented Supreme Court decisions and adopted a
reasoning-based approach that looks to whether “one opinion is a logical subset of
other, broader opinions.” United States v. Davis, 825 F.3d 1014, 1020–21 (9th Cir.
2016) (en banc), quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en
banc). The Nevada Attorney General argues that, under this test, it is Justice
O’Connor’s concurrence that determines what new evidence a petitioner must
produce to invoke the actual innocence gateway exception.
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This question of whether Davis displaced Griffin is one that our court will
need to address, but not today. Even if we were to assume, without deciding, that
the Schlup plurality’s newly presented evidence standard applies to actual
innocence gateway claims, the evidence that Pratt has produced is not nearly
sufficient to carry his burden.
With respect to Pratt’s first-degree kidnapping conviction, he has produced
no new evidence whatsoever. He merely argues that he is not guilty because the
facts of the crime, which he admitted, do not support a finding that he kidnapped
the victim for the purpose of committing a robbery as the statute requires. See Nev.
Rev. Stat. § 200.310(1). This is a legal argument, not evidence. The actual
innocence gateway is therefore closed to Pratt on this conviction.
Regarding the attempted murder conviction, Pratt offers only his own
testimony that he did not intend to kill the victim, and that he did not push her as
she said he did at sentencing. Assuming that Pratt would testify at trial, his
testimony would, at most, create a credibility dispute. A reasonable juror easily
could believe the victim’s account over Pratt’s, especially considering that Pratt
does not dispute that he (1) actively participated in robbing the victim, (2) kept her
in the backseat at knife point (after she had already been stabbed in the neck) as his
co-defendant drove the victim’s cab around the area while the two debated whether
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to kill her, and (3) forced her to climb out onto a tree overhanging the Truckee
River on threat of death, all while he was on “a 17-day drug runner.”
Pratt’s assertion that the state’s presentence report (PSR) supports his
proffered testimony is exaggerated. The PSR was not included in the record before
the district court, but it would not change our decision even if we considered it.
According to the PSR, Pratt led the victim to a bridge where he made her climb
down to the tree “or he would kill her.” The victim then fell when the branch she
grabbed broke. Although this report may be consistent with Pratt’s account that he
wanted to allow the victim to climb to safety and still be able to tell his co-
defendant that he killed her, it also is consistent with an intent that the victim
plummet to her death from the tree (especially in light of Pratt’s threat to kill her if
she did not climb onto it). The PSR therefore does not enhance the credibility of
Pratt’s account.
Pratt’s testimony would challenge the victim’s account of events, but we
disagree that “it is more likely than not that no reasonable juror would have
convicted him in the light of” that testimony. McQuiggin, 133 S. Ct. at 1935,
quoting Schlup, 513 U.S. at 327. Indeed, if a habeas petitioner’s own testimony
disputing that he committed the crime were enough to satisfy the actual innocence
gateway’s “exacting” standard, that gateway would be open in nearly every case,
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not “only in the ‘extraordinary’ case.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir.
2011) (en banc), quoting House v. Bell, 547 U.S. 518, 538 (2006).
Accordingly, the district court correctly held that Pratt did not qualify for the
actual innocence gateway exception for either of his convictions and dismissed his
habeas petition as untimely. To the extent Pratt challenges the district court’s
denial of his motion for appointment of counsel, the district court did not abuse its
discretion because Pratt has not shown that “the circumstances of [his] particular
case indicate that appointed counsel is necessary to prevent due process
violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986).
AFFIRMED.
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