NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 13 2024

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

MANUEL MELENDEZ, No. 21-17135 Petitioner-Appellant, D.C. No. 2:15-cv-02076-JAD-VCF v.

MEMORANDUM*

DWIGHT NEVEN, Warden; ATTORNEY

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding Argued and Submitted March 6, 2024 Las Vegas, Nevada

Before: M. SMITH, BENNETT, and COLLINS, Circuit Judges.

In 2010, Petitioner Manuel Melendez was convicted in Nevada state court of

six counts of lewdness with a child under the age of 14 in violation of Nev. Rev.

Stat. § 201.230. After one of those convictions was reversed on appeal, Melendez

was resentenced on the remaining counts to five concurrent life sentences, with

eligibility for parole after 10 years. After unsuccessfully seeking state post-

conviction relief, Melendez sought federal habeas corpus relief. All relief was

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ultimately denied by the district court. We granted a certificate of appealability,

which we construe to cover the following questions: (1) whether the district court

properly rejected Melendez’s contentions that his “actual innocence” excuses his

procedural defaults, including the untimeliness of some of his claims; and

(2) whether the district court properly denied Melendez leave to file a third

amended federal habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291

and 2253.

The Supreme Court has held that a state prisoner seeking federal habeas

relief may be able to overcome various procedural defaults by making a sufficient

showing of “actual innocence,” House v. Bell, 547 U.S. 518, 536–38 (2006) (citing

Schlup v. Delo, 513 U.S. 298 (1995)), and the Court has similarly held that such a

showing may excuse a failure to comply with the federal statute of limitations

governing habeas petitions, McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). The

Schlup “actual innocence” standard requires the petitioner to “establish that, in

light of new evidence, ‘it is more likely than not that no reasonable juror would

have found petitioner guilty beyond a reasonable doubt.’” House, 547 U.S. at 536–

37 (quoting Schlup, 513 U.S. at 327). The required new evidence means “new

reliable evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at trial.”

Id. at 537 (quoting Schlup, 513 U.S. at 324). However, in determining whether the

2 overall actual-innocence standard has been met, a federal habeas court “must

consider all the evidence, old and new, incriminating and exculpatory, without

regard to whether it would necessarily be admitted under rules of admissibility that

would govern at trial.” Id. at 538 (citations and internal quotation marks omitted).

The Schlup standard “is demanding and permits review only in the extraordinary

case.” Id. (citations and internal quotation marks omitted). We conclude that

Melendez has failed to satisfy this high standard.

The alleged victim in each of Melendez’s five counts of conviction was his

step-granddaughter, A.C. At trial, the State’s case against Melendez largely hinged

on the testimony of his ex-wife, Margarita, who claimed to have seen him

inappropriately touching A.C. in their home at some point during November 2006

and suspected him of having engaged in similar abuse on other occasions.

Melendez’s new evidence includes (1) documentation of Margarita’s eviction and

restraining order proceedings that, together, undermine her timeline of events;

(2) testimony from A.C. stating that Melendez never touched her inappropriately;

and (3) testimony from various individuals, including several of Margarita’s family

members, stating that she is a liar who has falsely accused others in the past and, in

their view, manipulated A.C. to exact revenge on Melendez.

Melendez’s documentary evidence strongly indicates that Margarita erred in

certain aspects of her testimony as to the timeframe when the abuse occurred.

3 Margarita testified that the abuse began in October or November 2006 at a mobile

home in which she and Melendez were living, with the one incident she directly

observed (the “living room incident”) occurring in or after November 2006. But

Melendez has now produced documents showing that Margarita had in fact been

evicted from the mobile home prior to November 2006. Margarita also testified

that the living room incident occurred after a hospital stay that had ended at the

beginning of October, which raises the possibility that the living room incident

occurred in October. However, Melendez has presented new evidence that casts

doubt on an October timeline as well. Specifically, Melendez has produced

documents from restraining order proceedings that Margarita initiated against him

in October 2006. These documents state that Margarita and Melendez had been

separated since October 1, 2006, and that Melendez was then living with his

cousin. Moreover, although these documents mention Margarita’s claims that

Melendez threatened to kill her and fired gunshots into her pastor’s house, they

make no reference to sexual abuse.

Contrary to what Melendez contends, his new evidence does not render the

substance of Margarita’s allegations “impossible.” As the district court noted,

Melendez’s new evidence did not foreclose the possibility that the living room

incident occurred in October 2006. In particular, there is evidence in the record

that, even after their separation, Melendez and Margarita continued to have contact

4 with one another, and a reasonable juror could infer that such opportunities for

contact occurred at other times during the separation. And even if Margarita’s

testimony about timing was wrong, that does not establish that the charged

incidents never occurred. Though the living room incident was the only act of

sexual abuse that Margarita directly witnessed, Melendez was convicted of having

abused A.C. on other occasions as well. Margarita’s claims about the timing of

these other occasions were less consistent, leaving open the possibility that they

occurred prior to October 2006. Margarita acknowledged in her testimony that she

had expressed uncertainty about the relevant dates.

Furthermore, there is additional evidence in the record that corroborates

Margarita’s description of the living room incident. Kalani Hoo, who represented

Melendez for a time during the lead-up to trial, was called by the State as a witness

in Melendez’s October 2013 post-conviction state evidentiary hearing. Hoo

testified that Melendez took a polygraph test in preparation for his defense, but that

the results indicated he was “deceptive.” Hoo also testified that one of his

investigators told him about an interaction with Melendez that led Hoo “to believe

that maybe one or more of the instances [of abuse] were not fabricated.” When

asked whether this meant that either Margarita or A.C. “was telling the truth on

some of these things,” Hoo stated “I don’t know. I purposely don’t interject

myself in that inquiry because I don’t want to know, . . . so that’s why I have my

5 investigator as a buffer to do that.” When asked again later if “[Melendez] didn’t

do what he was accused of [doing],” Hoo provided the following testimony, which

a reasonable factfinder could readily conclude refers to the living room incident:

I was informed of a discussion [Melendez] had with my investigator that didn’t—it didn’t challenge—One of the accusations was, Margarita came out, saw the girl on all fours watching television, and being stark naked, a bowl of candy, or bowl of something, in front of her, and he had his face in her lower region, that was one of the accusations, and my understanding was from my investigator he denied that happened and said, no, she was wearing a dress, just no underwear, and denied he was in physical contact with her, but was near that area. So my struggle with that was, I think ethically I was challenged as to whether or not I could go after the girl, or challenge the girl’s assertions, when I had some inference that it may not—what she was saying may have been true, so I didn’t want to—

After prompting, Hoo stated “[t]hat’s why a lot of these conversations I didn’t have

directly with him, so I could maintain that distance, but I had to know, and that’s

why it sort of shaped the way in which we presented a defense.” When asked

further if Melendez had told Hoo that “[Melendez] committed anything in terms of

this,” Hoo responded “[h]e didn’t tell me directly, no, he did not.” And when

asked if he agreed that there was “never an admission on the part of [Melendez] as

to conducting any of the allegations,” Hoo said “[s]ure.”

Viewing all of this evidence as a whole, Melendez has failed to show by a

preponderance that, in light of the new evidence, no reasonable juror would have

convicted. The timing of the charged incidents is not an element in the crime of

6 which Melendez was convicted, and Margarita’s errors as to the timeline are not

inconsistent with a finding that the incidents nonetheless happened.

The remainder of Melendez’s new evidence, which largely bears on the

credibility of key trial testimony, does not alter our conclusion that the Schlup

standard has not been met. Although Melendez has presented evidence that A.C.

now claims not to remember Melendez’s abuse, this does not necessarily refute

anything that she said during the initial trial. A.C.’s testimony at trial was

understandably somewhat equivocal, given that she was only three years old at the

time of the investigation, and jurors could reasonably conclude that A.C.’s current

recollection (or lack thereof) is not decisive. Although Melendez has presented

additional evidence that could lead reasonable jurors to decide to discount

Margarita’s testimony, it is not so overwhelming that every reasonable juror would

have had reasonable doubt as to the veracity of her core contentions. Moreover, a

reasonable juror could credit rehabilitation evidence from Margarita’s daughter,

Adriana, who corroborated Margarita’s claims about having heard A.C. reference

the abuse. And, conversely, a reasonable juror could instead decide to discount

Melendez’s credibility, given that he took the stand to deny that the alleged abuse

occurred.

Taking into account all of the evidence that Schlup instructs us to consider,

we hold that Melendez has not carried his burden to show by a preponderance that,

7 in light of the new evidence, no reasonable juror would convict. Consequently,

Melendez failed to excuse any bar presented by the statute of limitations or by any

other procedural defaults. In light of these conclusions, we further hold that the

district court did not abuse its discretion in denying leave to amend Melendez’s

habeas petition.

AFFIRMED.

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