Alby Smith v. Guy Hall

MEMORANDUM

Alby Ardell Smith appeals the dismissal for procedural default of his 28 U.S.C. § 2254 habeas corpus petition challenging his 2001 conviction for murder and arson. Smith concedes that he procedurally defaulted his claims of ineffective assistance of counsel, but contends that his default can be excused because he is “actually innocent.” See Schlup v. Delo, 513 U.S. 298, 324 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995).

Schlup permits a federal court to consider a defaulted habeas claim if the petitioner demonstrates his actual innocence. This requires a petitioner to come forward with “new reliable evidence” of his actual innocence. Id. If the petitioner satisfies this burden, the habeas court must then consider all the evidence, old and new, and make a probabilistic determination about what reasonable, properly instructed jurors would do. See Lee v. Lampert, 653 F.3d 929, 938 (9th Cir.2011) (en banc). The petitioner must “demonstrate that more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 538 , 126 S.Ct. 2064 , 165 L.Ed.2d 1 (2006).

Here, Smith may have satisfied the…