Hundley

MEMORANDUM **

Mark Hundley, a California state prisoner, appeals the dismissal as untimely, of his habeas corpus petition brought under 28 U.S.C. § 2241 , as limited by 28 U.S.C. § 2254 . He contends that the district court should have reached the merits of his claims because he is actually innocent of the jury conviction of first degree murder and assault with a firearm. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and we affirm.

We review de novo the district court’s order dismissing a petition for writ of habeas corpus. See Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir.2003). We review the district court’s findings of fact relevant to the denial of the habeas petition for clear error. See Bonin v. Calderon, 59 F.3d 815, 823 (9th Cir.1995).

Under the actual innocence gateway of Schlup v. Delo, 513 U.S. 298 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), a petitioner’s procedurally barred claim may be considered *56 on the merits if his claim of actual innocence is sufficient to implicate a fundamental miscarriage of justice. See Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir.2002). 1 To make a showing of actual innocence, a petitioner must establish that “in light of…