Steven Brent Dick v. SHARON BLACKETTER, Superintendent, Eastern Oregon Correctional Institution

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN BRENT DICK,
Petitioner - Appellant,
v.
SHARON BLACKETTER,
Superintendent, Eastern Oregon
Correctional Institution,
Respondent - Appellee.
No. 09-35739
D.C. No. 6:07-cv-00538-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted May 5, 2010**
Portland, Oregon
Before: KOZINSKI, Chief Judge, KLEINFELD and IKUTA, Circuit Judges.
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
FILED
MAY 13 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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claims. See Schlup v. Delo, 513 U.S. 298, 327 (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 (2006).
AFFIRMED.

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