Erin Rieman v. Margaret Gilbert

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIN DEAN RIEMAN, No. 20-35463
Petitioner-Appellant, D.C. No. 3:16-cv-05250-RBL
v.
MEMORANDUM*
MARGARET GILBERT,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted September 3, 2021
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and RAKOFF,** District
Judge.
Erin Rieman appeals the district court’s denial of his 28 U.S.C. § 2254habeas petition challenging his first-degree manslaughter conviction by plea under
North Carolina v. Alford, 400 U.S. 25 (1970). The parties are familiar with the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
facts so we do not repeat them here. We have jurisdiction under 28 U.S.C. § 2253and review de novo the district court’s dismissal and its findings of fact for clear
error. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003). We affirm.
To pass through the “gateway . . . to have his otherwise barred constitutional
claim considered on the merits,” Rieman must furnish “new reliable evidence”
showing that “it is more likely than not that no reasonable juror would have
convicted him in the light of the new evidence.” Schlup v. Delo, 513 U.S. 298,
315, 324, 327 (1995). Although the new evidence concerning Walter Bremmer is
troubling, Rieman has not met the Schlup standard. Reasonable jurors might view
Rieman’s new testimony, inconsistencies in Bremmer’s testimony, and Bremmer’s
history of violence and strangulation and conclude that Rieman was not guilty
beyond a reasonable doubt. However, it is not more likely than not that no
reasonable juror would have convicted Rieman. See Johnson v. Knowles, 541 F.3d
933, 937 (9th Cir. 2008) (“[T]he miscarriage of justice exception is limited to those
extraordinary cases where the petitioner asserts his innocence and establishes that
the court cannot have confidence in the contrary finding of guilt.” (emphasis in
original)).
In particular, the prosecution originally charged Rieman as a principal or
accomplice with second-degree intentional and felony murder. The evidence does
not establish that it is more likely than not that no reasonable juror would have
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convicted Rieman as an accomplice because, based on the testimony of both
Bremmer and Rieman, jurors could have believed that the two men killed Adkins
together. See Rev. Code Wash. 9A.08.020 (accomplice liability); Jaramillo v.
Stewart, 340 F.3d 877, 883 (9th Cir. 2003) (“[W]here the State has foregone more
serious charges in the course of plea bargaining, the petitioner’s burden of
demonstrating actual innocence must also extend to the more serious charges.”).
Because Rieman has not shown actual innocence, he has not avoided the
federal statute of limitations nor excused his state procedural default. See Lee v.
Lampert, 653 F.3d 929, 932 (9th Cir. 2011) (en banc). We do not need to reach the
merits of Rieman’s involuntary plea claim or decide whether 28 U.S.C. § 2254bars review of the claim.
AFFIRMED.
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