KFIR HIRSCH, FKA Cody Leavitt v. DWIGHT NEVEN, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KFIR HIRSCH, FKA Cody Leavitt,
Petitioner-Appellant,
v.
DWIGHT NEVEN, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 20-15800
D.C. No.
2:12-cv-00625-MMD-NJK
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted November 19, 2021**
San Francisco, California
Before: McKEOWN and GOULD, Circuit Judges, and MOLLOY,*** 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
NOV 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Kfir S. Hirsch appeals the district court’s dismissal of his 28 U.S.C. § 2254
habeas petition challenging his conviction for battery with use of a deadly weapon
resulting in substantial bodily harm. The parties are familiar with the facts so we
do not repeat them here. We have jurisdiction under 28 U.S.C. § 2253 and we
review the district court’s denial of habeas relief de novo and its findings of fact
for clear error. Larsen v. Soto, 742 F.3d 1083, 1091–92 (9th Cir. 2013).
Hirsch may overcome procedural default of his ineffective-assistance-of-
trial-counsel claim if he demonstrates “actual innocence” by presenting the court
with “new reliable evidence.” Schlup v. Delo, 513 U.S. 298, 324 (1995). To pass
through the actual innocence “gateway,” Hirsch must show that “it is more likely
than not that no reasonable juror would have convicted him in the light of the new
evidence.” Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc).
Hirsch has not met Schlup’s “exacting standard.” Id. at 938. Hirsch first
argues that the victim gave testimony at Hirsch’s sentencing indicating that the
victim, not Hirsch, was the aggressor and, therefore, Hirsch acted in self-defense.
At best, however, there is conflicting evidence on this point. Hirsch further argues
that an expert in human mechanics has opined that the victim’s knife wounds are
not consistent with the state’s theory of the case. But, as recognized in the expert’s
three-page preliminary report, “the police incident report and other documents
reviewed indicated considerable inconsistency and a lack of detail as to how the

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incident occurred,” the expert did not have access to materials that “could alter his
observations,” and his conclusions merely “suggest viable alternative explanations
to conclusions expressed” by investigators. For these reasons, it is not more likely
than not that no reasonable juror would have convicted Hirsch.1 See Johnson v.
Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (The actual innocence gateway is
“limited to those extraordinary cases where the petitioner asserts his innocence and
establishes that the court cannot have confidence in the contrary finding of guilt.”).
Hirsch likewise does not qualify for the exception to the procedural default
bar announced in Martinez v. Ryan, 566 U.S. 1 (2012). The Martinez exception
permits federal habeas courts to excuse procedural default of an ineffective-
assistance-of-trial-counsel claim “when the claim was not properly presented in
state court due to an attorney’s errors in an initial-review collateral proceeding.”
Martinez, 566 U.S. at 5. Any ineffective assistance of Hirsch’s counsel during
initial-review collateral proceedings was not itself a procedural default and we
express no view on the merits. See Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)
(defining “procedurally defaulted claims” as “claims that the state court denied
1 Whether the reviewing Court considers a gateway claim of actual innocence
based on Schlup under a de novo or abuse of discretion standard “is not entirely
settled in this circuit.” Stewart v. Cate, 757 F.3d 929, 938 (9th Cir. 2014).
Because Hirsch cannot overcome the district court’s actual-innocence finding
under either standard, we do not reach this issue. In addition, because Hirsch has
not met the Schlup standard as to his battery charge, we need not consider whether
Hirsch must demonstrate actual innocence of more serious charges in an unrelated
criminal case that were foregone by the prosecution as part of his plea agreement.

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based on an adequate and independent state procedural rule.”). Because Hirsch’s
ineffective-assistance-of-trial-counsel claim was not procedurally defaulted during
initial-review collateral proceedings—it was procedurally defaulted during
successive collateral proceedings—the Martinez exception does not apply to
Hirsch. Martinez, 566 U.S. at 10–11.
AFFIRMED.

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