NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 9 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYCE EVERETT PETERSON, No. 22-35732

Petitioner-Appellant, D.C. No. 9:17-cv-00019-DLC

v.

MEMORANDUM*

ATTORNEY GENERAL FOR THE STATE

OF MONTANA; JIM SALMONSEN,

Respondents-Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted February 7, 2024** Portland, Oregon

Before: McKEOWN, BYBEE, and BRESS, Circuit Judges.

Bryce Peterson appeals the district court’s denial of habeas relief under 28

U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We

“review the district court’s denial of a habeas petition de novo.” Prescott v. Santoro,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 53 F.4th 470, 477 (9th Cir. 2022). The district court’s denial of discovery is

reviewed for abuse of discretion. Smith v. Mahoney, 611 F.3d 978, 997 (9th Cir.

2010), as amended. We affirm.

1. Because Peterson’s claims were adjudicated on the merits in Montana state

court, he must satisfy the requirements of 28 U.S.C. § 2254(d) to be eligible for

relief. Under § 2254(d), Peterson “bears the burden of demonstrating that the state

court’s ruling ‘was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.’” Prescott, 53 F.4th at 477 (quoting Harrington v. Richter, 562 U.S.

86, 103 (2011)). Peterson has not demonstrated that his judicial bias claim meets

this standard.

To the extent Peterson advances a freestanding claim of actual innocence,

such a claim “is not based on clearly established federal law,” and so Peterson would

have to show, under § 2254(d)(2), that the state court decision “was based on an

unreasonable determination of the facts in light of the evidence presented in the State

court proceeding.” Id. at 478–79 (quoting 28 U.S.C. § 2254(d)(2)). Peterson does

not frame his actual innocence arguments within the strictures of § 2254(d)(2). But

even assuming his arguments could be construed in this manner, Peterson would

have to “show ‘that an appellate panel, applying the normal standards of appellate

review, could not reasonably conclude that the [state court’s] finding is supported

2 by the record,’” or that “no appellate court could reasonably hold ‘that the state

court’s fact-finding process was adequate.’” Id. at 479 (first quoting Hibbler v.

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012); and then quoting Lambert v.

Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). Peterson’s proffered evidence does

not meet these standards.

2. Even without the deference accorded to state court judgments under

§ 2254(d), Peterson’s claims fail. To demonstrate judicial bias, Peterson must

“show[] . . . an undue risk of bias, based on the psychological temptations affecting

an ‘average judge.’” Echavarria v. Filson, 896 F.3d 1118, 1128 (9th Cir. 2018)

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)). Peterson

submitted affidavits containing hearsay allegations about an improper relationship

between his sentencing judge and victim, and he also points to Facebook messages

purportedly authored by the victim. But he does not provide any non-speculative

evidence of judicial bias at the time of his sentencing, or at any time.

Nor did the district court abuse its discretion in denying Peterson’s requested

discovery. “[T]here is no general right to discovery in habeas proceedings.” Rich

v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999), as amended. Peterson has no

concrete evidence showing that the judge and victim were in a relationship at the

time of his sentencing. And he does not explain how his requested discovery would

change matters. The district court thus did not abuse its discretion in concluding that

3 Peterson had not shown good cause for discovery under Rule 6 of the Rules

Governing Section 2254 Cases.

3. Peterson has not shown actual innocence to overcome the procedural

default (untimeliness) of his other claims. Actual innocence “does not merely

require a showing that a reasonable doubt exists in the light of the new evidence, but

rather that no reasonable juror would have found the defendant guilty.” Schlup v.

Delo, 513 U.S. 298, 329 (1995). To satisfy this standard, Peterson must proffer

“evidence of innocence so strong that we cannot have confidence” in his Alford plea.

Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003) (alterations omitted) (quoting

Schlup, 513 U.S. at 316). Peterson’s evidence does not meet this standard.

First, as to aggravated assault, Peterson submitted an affidavit and

pathologist’s report to contend that the victim inflicted additional injuries on herself

after the events that led to Peterson’s conviction. But neither piece of evidence alters

the eyewitness accounts and other evidence of the victim’s injuries on the day of the

altercation. Peterson’s pathologist report also concluded that there was both

evidence of an altercation and evidence of later injuries. Evidence that the victim

had injured her ear in childhood was also known at the time of trial and not indicative

of whether Peterson caused further injury. This evidence does not show that “no

juror, acting reasonably, would have voted to find [Peterson] guilty beyond a

reasonable doubt” on the aggravated assault charge. Schlup, 513 U.S. at 329.

4 Second, as to assault with a weapon, Peterson cites his father’s time-of-travel

analysis and the failure of police to discover the handgun Peterson used to threaten

the victim. But Peterson’s father’s analysis, which supposedly would put Peterson

and the victim at a different location, is inconclusive. Peterson’s own investigator

at sentencing also conceded that telephone records do not prove that Peterson and

the victim were not at the residence when the officer performed the welfare check.

And even without the handgun, a reasonable juror could find the victim’s allegation

credible, especially given other evidence that Peterson had displayed a handgun after

assaulting the victim on a separate occasion.

Third, as to aggravated kidnapping and aggravated burglary, Peterson argues

that he was trying to save the victim from a lithium overdose. In support of his story,

he attacks the victim’s credibility with her other inconsistencies and the dimensions

of his truck interior. But this evidence is not so conclusive as to contradict the

victim’s account and other evidence that Peterson kidnapped her.

Because Peterson’s claim of actual innocence fails, the district court properly

denied the motion to amend the petition as futile. See Bonin v. Calderon, 59 F.3d

815, 845 (9th Cir. 1995). The denial of Peterson’s request to take discovery of trial

counsel was also proper because the underlying claim was time-barred.

AFFIRMED.

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