United States Ninth Circuit

Denial of a habeas petition in a murder case is affirmed where: 1) contrary to a panel's prior holding, petitioner did not satisfy the requirements of Schlup v. Delo's, 513 U.S. 298 (1995), actual innocence exception with respect to his conviction for felony murder; and 2) neither the actions of petitioner's first state post-conviction trial counsel nor the state's withholding of the results of a criminal companion's polygraph examination constituted sufficient cause and prejudice to excuse petitioner's procedural default resulting from his failure to exhaust his state remedies.

Appellate Information

• Argued 06/18/2007
• Decided 12/26/2007
• Published 12/26/2007

Judges

• Before ALEX KOZINSKI, Chief Judge, and MARY M. SCHROEDER, STEPHEN REINHARDT, ANDREW J. KLEINFELD, SIDNEY R. THOMAS, M. MARGARET McKEOWN, KIM McLANE WARDLAW, W. FLETCHER, RAYMOND C. FISHER, RICHARD A. PAEZ, RICHARD C. TALLMAN, RICHARD R. CLIFTON, JAY S. BYBEE, MILAN D. SMITH, JR. and SANDRA S. IKUTA, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Thomas J. Hester, Office of the Federal Public Defender, Portland, OR, for the petitioner-appellant.


• For Appellees:
  
• Kathleen Cegla, Assistant Attorney General;  Erin C. Lagesen, Assistant Attorney General (argued), Salem, OR, for the respondent-appellee.