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Jenkins v. Johnson
Citation: 231 F. App'x 618Docket: No. 06-35150
Court: Court of Appeals for the Ninth Circuit; May 3, 2007; Federal Appellate Court
Michael Wayne Jenkins appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition by the district court, which found his claims were procedurally defaulted. Jenkins acknowledges that he has defaulted on his claim regarding violations of his federal due process rights due to being tried in an adult court lacking jurisdiction. However, he contends that his actual innocence should excuse this default. The court has jurisdiction under 28 U.S.C. §§ 1291 and 2253, and affirms the district court's decision. The court reviews procedural default dismissals de novo and notes that such defaults may be excused if a fundamental miscarriage of justice is shown, specifically if the petitioner can demonstrate that a constitutional violation likely resulted in the conviction of someone who is actually innocent. Actual innocence serves as a gateway to consider otherwise barred claims, but it must be based on factual innocence rather than mere legal insufficiency. For a credible claim of actual innocence, the petitioner must provide new reliable evidence that was not available at trial. Since Jenkins has not challenged the factual basis of his conviction, his actual innocence claim is insufficient, and the procedural default precludes consideration of the merits of his petition. The court therefore affirms the dismissal. The disposition of this case is not intended for publication and does not serve as precedent except as stated in Ninth Circuit Rule 36-3.