Paul Michael TEAHAN, Petitioner-Appellant, v. V.M. ALMAGER; Edmund G. Brown, Jr., Respondents-Appellees, 383 F. App'x 615

MEMORANDUM California prisoner Paul Michael Teahan appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. Teahan contends that new reliable evidence of actual innocence entitles him to equitable tolling and excuses the untimely filing of his petition. Teahan bases his claim of actual innocence primarily upon the unsworn alibi statements four witnesses provided to a defense investigator during pre-trial investigation. Assuming that the actual innocence gateway of Schlup v.

Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), provides a basis for equitable tolling, Teahan has failed to show that, based on this evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. See Smith v. Baldwin, 510 F.3d 1127, 1142 (9th Cir.2007). Therefore, the district court did not err in dismissing his petition as untimely. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.