Harvey

MEMORANDUM **

William Donald Harvey appeals the denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his 1992 state court conviction for first degree rape and incest of his adult sister. Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition.

Harvey’s federal habeas corpus petition asserted due process claims that were not presented to the state court. Harvey contends that the district court should have reached the merits of these claims because his mother’s affidavit constituted new evidence of his actual innocence sufficient to excuse a conceded procedural default of his constitutional claims in state court. We disagree and affirm the district court’s denial of Harvey’s petition.

To overcome the procedural default and argue his otherwise barred constitutional claims in federal court, Harvey must show that his mother’s affidavit demonstrates that “it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995). This standard requires us to “make…