Kavin Maurice Rhodes v. CHRISTIAN PFEIFFER, Warden, Warden, in individual capacity

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAVIN MAURICE RHODES,
Petitioner-Appellant,
v.
CHRISTIAN PFEIFFER, Warden, Warden,
in individual capacity,
Respondent-Appellee.
No. 21-55870
D.C. No.
2:14-cv-07687-JGB-KK
Central District of California,
Los Angeles
ORDER
Before: LEE and H.A. THOMAS, Circuit Judges, and BENNETT,* District Judge.
Judges Lee, Thomas, and Bennett have voted to deny the Petition for
Rehearing. Judges Lee and Thomas voted to deny, and Judge Bennett recommended
denying, the Petition for Rehearing En Banc. The full court has been advised of the
Petition for Rehearing En Banc, and no judge of the court has requested a vote.
Petitioner-Appellant’s Petition for Rehearing and Rehearing En Banc (Dkt. No. 42),
filed November 16, 2022, is DENIED. The memorandum disposition filed October
31, 2022 (Dkt. No. 39) is amended to note that the panel declines to address
Petitioner-Appellant’s uncertified claims. The parties may not file another petition
for rehearing or petition for rehearing en banc.
* The Honorable Richard D. Bennett, United States District Judge for
the District of Maryland, sitting by designation.
FILED
DEC 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAVIN MAURICE RHODES,
Petitioner-Appellant,
v.
CHRISTIAN PFEIFFER, Warden, in
individual capacity,
Respondent-Appellee.
No. 21-55870
D.C. No.
2:14-cv-07687-JGB-KK
AMENDED
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted October 6, 2022**
Pasadena, California
Before: LEE and H.A. THOMAS, Circuit Judges, and BENNETT,*** Senior
District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Richard D. Bennett, Senior United States District Judge
for the District of Maryland, sitting by designation.
FILED
DEC 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Kavin Rhodes, who was convicted of first-degree murder and attempted
second-degree robbery, appeals the dismissal of his 28 U.S.C. § 2254 habeas
petition. In his petition, Rhodes argued that newly discovered evidence undermines
the credibility of trial witnesses and thus supports his innocence. The district court
held that he did not timely present these claims and that he could not meet the “actual
innocence” standard under Schlup v. Delo for time-barred claims. 513 U.S. 298
(1995). We affirm the district court’s dismissal.
1. Timeliness of claims: Rhodes first challenges the district court’s
finding that Claims One through Five in his habeas petition were not timely. Even
though this issue was not expressly certified for appeal, we review it because the
timeliness of these claims determines whether the district court properly analyzed
them under Schlup. See Tillema v. Long, 253 F.3d 494, 502–03 n.11 (9th Cir. 2001)
(considering a question that “clearly [was] comprehended” within the claim certified
for appeal even though that question was not expressly certified), overruled on other
grounds by Pliler v. Ford, 542 U.S. 225 (2004); Jones v. Smith, 231 F.3d 1227, 1231
(9th Cir. 2000) (“Absent an explicit statement by the district court . . . we will assume
that the [certificate of appealability] also encompasses any procedural claims that
must be addressed on appeal.”).
The district court correctly concluded that Claims One through Five of
Rhodes’s habeas petition are untimely. Under the Antiterrorism and Effective Death

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Penalty Act (AEDPA), habeas claims based on newly discovered evidence must be
brought within one year of discovery of the evidence, not counting periods “during
which a properly filed application for State post-conviction or other collateral review
. . . is pending.” 28 U.S.C. § 2244(d). Rhodes claims that he timely raised his claims
because they were referenced in post-conviction discovery motions. But a post-
conviction discovery motion does not qualify as a collateral review motion because
it does not allow a court to grant relief from a judgment or to grant a reduction in
sentence. Rhodes’s post-conviction discovery motions and discovery appeals thus
did not toll AEDPA’s statute of limitations. Nor did Rhodes’s inclusion of a request
to remand for resentencing in his discovery appeal convert the appeal into a motion
for collateral review, because the resentencing request was procedurally improper.
California’s post-conviction discovery statute does not allow a court to grant a
petitioner relief from a sentence. See Cal. Penal Code § 1054.9.
Rhodes argues in the alternative that he is entitled to equitable tolling of
AEDPA’s statute of limitations. This argument fails under Holland v. Florida, 560
U.S. 631 (2010), because Rhodes does not contend that an extraordinary
circumstance prevented his timely filing. See id. at 649.
2. Schlup “actual innocence”: Because Claims One through Five of
Rhodes’s habeas petition are untimely, the district court appropriately analyzed them
under Schlup’s “actual innocence” standard. Schlup allows a habeas petitioner

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whose claims would otherwise be procedurally barred to proceed only if the
petitioner can “show that it is more likely than not that no reasonable juror would
have convicted him in the light of . . . new evidence.” 513 U.S. at 327.
The district court certified for appeal the question whether Rhodes can meet
the “actual innocence” standard on Claims One through Five in his habeas petition
“solely by undermining or impeaching the credibility of witnesses.” When new
evidence undermines the credibility of witnesses who testified against a petitioner,
Schlup requires that the evidence do more than merely “provide[] a basis for some
degree of impeachment” of those witnesses. Sistrunk v. Armenakis, 292 F.3d 669,
677 (9th Cir. 2002). Instead, the evidence must “fundamentally call into question
the reliability of [the petitioner’s] conviction.” Id. While it is possible that a
witness’s credibility can be so undermined as to fundamentally call a petitioner’s
conviction into question, Rhodes is unable to meet that standard here.
The evidence supporting Claims One through Five of Rhodes’s habeas
petition raises potentially troubling questions about the prosecution’s conduct. It
does not, however, meet the high bar for “actual innocence” under Schlup. Claims
One and Two center on evidence of payments by law enforcement to Hyron Tucker,
a main witness who testified against Rhodes. This evidence does not satisfy Schlup
because Tucker disclosed at trial that he benefited in his own criminal case by acting
as a cooperative witness against Rhodes. Evidence that Tucker also benefited

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financially from testifying against Rhodes is cumulative. In addition, the evidence
does not conclusively establish that Tucker lied under oath about receiving payments
from police, as the payments may have been included with the witness protection
program that Tucker admitted that he was placed in. And Tucker’s trial testimony
was generally corroborated by two other witnesses, reducing the impact of any
impeachment of his credibility. Finally, though this evidence may demonstrate that
a detective testified falsely about payments to Tucker, it does not satisfy Schlup
because the detective’s testimony was of limited value in securing Rhodes’s
conviction.
Claim Three of Rhodes’s habeas petition focuses on evidence of criminal
charges against Yvette Comeaux, another witness who testified against Rhodes.
This evidence also does not satisfy Schlup. First, it is cumulative to Comeaux’s trial
testimony disclosing that she engaged in criminal activity. Second, a reasonable
juror would not credit Rhodes’s purely speculative argument that Comeaux testified
falsely because of pressure from law enforcement arising out of these criminal
charges. In any event, Comeaux testified at trial that police promised not to revoke
her probation if she testified against Rhodes, so any additional evidence of law
enforcement leverage over her is cumulative.
Claim Four of Rhodes’s habeas petition centers on evidence that the same
prosecutor appeared both in Rhodes’s case and in a criminal case against Tucker, as

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well as evidence of Tucker’s criminal history. This evidence does not satisfy Schlup
because Tucker disclosed at trial that Rhodes’s prosecutor advocated for him in a
criminal case because he was acting as a cooperative witness against Rhodes, so
Rhodes’s speculative argument that Tucker received still other benefits from law
enforcement would be cumulative even if it were true. And evidence of Tucker’s
criminal past is cumulative to Tucker’s trial testimony that he engaged in criminal
behavior. Finally, even if the evidence proves that Tucker lied under oath that he
had no prior felony convictions, the fact that his testimony was generally
corroborated by other witnesses would maintain his credibility before a reasonable
juror.
Claim Five of Rhodes’s habeas petition relies on an eyewitness statement that
contradicts the trial testimony of Shashawn Green, another witness against Rhodes.
This evidence does not satisfy Schlup because Green’s testimony was of limited
value in securing Rhodes’s conviction.
3. Other claims: Rhodes makes several additional arguments based on
newly discovered evidence that fall outside of the claims certified for appeal. The
evidence supporting these arguments does not demonstrate Rhodes’s innocence. We
decline to address them. 9th Cir. R. 22-1(e).
AFFIRMED.

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