Christian Walker v. E. K. McDaniel

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTIAN WALKER,
Petitioner-Appellant,
v.
E. K. MCDANIEL,
Respondent-Appellee.
No. 16-15611
D.C. No.
2:04-cv-00929-KJD-PAL
MEMORANDUM*
*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted January 10, 2018
San Francisco, California
Before: THOMAS, Chief Judge, and RAWLINSON and WATFORD, Circuit
Judges.
In 1998, Christian Walker (Walker) was convicted of attempted murder
arising from a dispute involving Walker and his cousin, Johnny Walker (JW). At
his trial, JW produced evidence that Walker was the shooter. JW was acquitted of
attempted murder, but convicted of battery. At his sentencing hearing, JW
maintained his innocence.
FILED
FEB 05 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.

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At his trial, Walker argued that JW was the shooter. Following his
conviction, Walker’s appeal to the Nevada Supreme Court was dismissed. Walker
subsequently petitioned for habeas relief in Nevada state court. The petition was
ultimately unfruitful.
In 2002, JW had signed an affidavit describing a letter sent to Walker’s trial
counsel before Walker’s trial, confessing that he was the shooter, and that Walker
had no prior knowledge of the attack. Walker thereafter filed a federal petition for
habeas relief, asserting primarily ineffective assistance of counsel, but attaching
JW’s affidavit. The federal district court dismissed Walker’s petition as untimely.
On appeal, we affirmed the district court’s denial of equitable tolling based
on attorney misconduct, but vacated and remanded the district court’s denial of
tolling based on actual innocence. We determined that JW’s affidavit was
sufficiently trustworthy to warrant an evidentiary hearing.
At the evidentiary hearing, JW testified about the night of the shooting, the
letter to Walker’s attorney, his remorse for the shooting, and his acceptance of
responsibility for the shooting. The prosecuting attorney in Walker’s trial also
testified regarding the trial tactics in the case.
Following the evidentiary hearing, the district court again dismissed Walker’s
petition as untimely, finding that Walker failed to adequately raise a claim of actual
innocence to warrant equitable tolling. This appeal followed.
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To succeed on an actual innocence claim, the petitioner must present new
evidence that “persuades the district court that . . . no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” Stewart v. Cate,
757 F.3d 929, 938–39 (9th Cir. 2014), as amended; see also Schlup v. Delo, 513
U.S. 298, 316 (1995).
Even under the more rigorous de novo standard, Walker’s claim of actual
innocence is unavailing. The district court evaluated JW’s testimony and
determined that the testimony lacked credibility. In addition, there were factual
inconsistencies in the timeline of events, contradictory assertions of innocence
made by JW after the affidavit, and JW’s prior convictions for violent felonies.
Because Walker failed to establish a valid Schlup claim, the district court properly
dismissed Walker’s habeas petition as untimely. See Copeland v. Ryan, 852 F.3d
900, 903, n.1 (9th Cir. 2017); see also Cate, 757 F.3d at 938.
AFFIRMED.
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