Steven Brent DICK, Petitioner-Appellant, v. Sharon BLACKETTER, Superintendent, Eastern Oregon Correctional Institution, Respondent-Appellee, 378 F. App'x 754

MEMORANDUM Petitioner’s evidence as a whole is insufficient to pass through the Schlup gateway, and therefore we may not reach the merits of his procedurally defaulted claims. See Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). The police report describing the complaining witness’s experience at the home of Arturo Zamarripa does not make it “more likely than not that no reasonable juror would have convicted” Petitioner for sexual abuse. Id.

Because the jury heard testimony regarding the complaining witness’s grades and his parents’ divorce, the complaining witness’s deposition testimony addressing these issues does not constitute new evidence undermining the complaining witness’s credibility. See id.; Cooper v. Brown, 510 F.3d 870, 884 (9th Cir.2007). Our analysis of what a “reasonable, properly instructed juror[ ] would do” in light of the new evidence is not altered by the fact that two jurors at Petitioner’s trial voted to acquit. House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.