Rodrigo Gandarela v. Dan Johnson, Superintendent, Snake River Correctional Facility

ORDER

The panel recalls the mandate that issued on February 7, 2002.

The motion for reconsideration of petition for rehearing and the petition for rehearing en banc are DENIED except as the opinion is hereby amended.

The opinion filed December 18, 2001, is amended as follows:

The panel directs the Clerk to reenter judgment. The parties may seek panel rehearing or rehearing en banc thereafter within the time limits specified by FRAP 40.

OPINION

Oregon state prisoner Rodrigo Gan-darela appeals the district court’s order denying his 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his 1994 jury trial conviction for sexual abuse of a minor. The victim, a four-year-old child, did not testify at trial. She testified at a competency hearing at which the defendant was not present. At trial, the child victim’s hearsay statements about the incident of abuse were introduced through other witnesses who heard the statements. Gandarela failed to assert a Confrontation Clause claim on direct appeal, thus procedurally defaulting on that claim. By offering new evidence to show “actual innocence,” Gandarela now attempts to establish a procedural “gateway” permitting review of…