Frederick Brinkley v. Ben Curry

MEMORANDUM

California state prisoner Frederick C. Brinkley appeals pro se from the district court’s order denying his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

Brinkley contends that he has made an adequate showing of actual innocence to warrant consideration of the merits of his untimely petition. The documents proffered by Brinkley do not demonstrate that it is “more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt.” See Lee v. Lampert, 653 F.3d 929, 937 , 2011 WL 3275947, at *6 (9th Cir.2011) (an otherwise time-barred petition may only be heard on the merits where the petitioner makes a sufficient showing of actual innocence).

Because the evidence upon which Brinkley relies falls short of meeting the Lee standard, the district court did not abuse its discretion in declining to hold an evi-dentiary hearing. See Downs v. Hoyt, 232 F.3d 1031, 1041 (9th Cir.2000).

Brinkley also suggests that his substantive actual innocence claim is timely be cause his petition was filed within one year of the date on which the factual predicate of his claim could have been discovered.…