Paul Teahan v. v. Almager

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NOT FOR PUBLICATION JUN 10 2010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.
2 08-55608