88 F. App'x 202

Scott Allen BRITTON, Petitioner—Appellant, v. Joseph LEHMAN, Secretary of Dept. of Corrections, Olympia, WA, Respondent—Appellee.

No. 02-35988.

D.C. No. CV-01-05052-JLQ.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 13, 2004.*

Decided Feb. 19, 2004.

Amy M. Schwering, Esq., Federal Public Defender’s Office, Spokane, WA, Nancy D. Tenney, Esq., Federal Public Defender’s Office, Seattle, WA, for Petitioner-Appellant.

Donna H. Mullen, Esq., Office of the Washington Attorney General, Olympia, WA, for Respondent-Appellee.

Before D.W. NELSON, KLEINFELD, and FISHER, Circuit Judges.

MEMORANDUM **

Britton does not challenge the procedural bar to his petition, but argues instead that we should overlook it under Schlup v. Delo.1

Schlup allows a habeas court to reach the merits of a petitioner’s proeedurally barred claim “if he or she demonstrates ‘actual innocence.’ ”2 To meet this test, the petitioner must introduce new evidence and show “that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”3 Britton’s new evidence offered in support of his theory that someone else committed the crimes for which he was convicted neither provides much support for that theory nor does anything to explain the evidence against Britton.4 At most, his evidence shows that a reasonable juror could have had a reasonable doubt about Britton’s guilt because of the thin evidence Britton proffered against the victim’s former girlfriend. His evidence does *203not show that any reasonable juror would have reasonable doubt. Thus, he cannot pass through the Schlup gateway.

AFFIRMED.

Britton v. Lehman
88 F. App'x 202

Case Details

Name
Britton v. Lehman
Decision Date
Feb 19, 2004
Citations

88 F. App'x 202

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!