Danny Cotton v. Dora Schriro

MEMORANDUM

Danny Cotton appeals the district court’s denial of his petition for a writ of habeas corpus.

Cotton’s sole argument in his petition for a writ of habeas corpus — one that he never raised in state court — is that he is actually innocent of the crime for which he was convicted. Although Cotton’s actual innocence claim is unexhausted, we affirm the judgment of the district court and deny Cotton’s petition because “ ‘it is perfectly clear that [Cotton] does not raise even a colorable federal claim.’ ” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.2005) (quoting Granberry v. Greer, 481 U.S. 129, 135 , 107 S.Ct. 1671 , 95 L.Ed.2d 119 (1987)); see 28 U.S.C. § 2254 (b)(2).

To establish his claim of actual innocence, Cotton relies on three recantation affidavits and eight alibi affidavits. Because post-trial affidavits are “obtained without the benefit of cross-examination,” Herrera v. Collins, 506 U.S. 390, 417 , 113 S.Ct. 853 , 122 L.Ed.2d 203 (1993), they “are to be treated with a fair degree of skepticism,” id. at 423 , 113 S.Ct. 853 (O’Connor, J., concurring). Cotton’s affidavits are no exception. The recantation affidavits emerged two, six, and ten years after…