Jamaul Monk v. TERRI GONZALEZ, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMAUL MONK,
Petitioner - Appellant,
v.
TERRI GONZALEZ, Warden,
Respondent - Appellee.
No. 10-55786
D.C. No. 2:10-cv-01446-RSWL
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Court Judge, Presiding
Argued and Submitted on June 3, 2014.
San Francisco, California
Before: TROTT and CALLAHAN, Circuit Judges, and BENNETT, District
Judge.**
Jamaul Monk was convicted in 2005 of the gang-related shooting of Darryl
Bell in 2003, which left Bell paralyzed from the neck down. Bell identified Monk
FILED
JUL 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
1 * This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1 ** The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.

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as the shooter, both before and during Monk’s two trials, the first of which ended
in a hung jury. Bell died prior to Monk’s sentencing in 2006.
In 2010, Monk filed a pro se Petition For Writ Of Habeas Corpus By A
Person In State Custody pursuant to 28 U.S.C. § 2254 (§ 2254 Petition). The
district court dismissed Monk’s § 2254 Petition as untimely, rejecting Monk’s
argument that his “actual innocence” opened the gateway to consideration of his
untimely claims, pursuant to Schlup v. Delo, 513 U.S. 298 (1995). Monk appealed.
Monk was granted a certificate of appealability, see 28 U.S.C. § 2253(c)(3), with
respect to the following issue: “[W]hether appellant has made a credible claim of
actual innocence which excuses his untimely filing [of his § 2254 Petition].” We
affirm dismissal of Monk’s § 2254 Petition as untimely.
1. We must first determine what record we may consider on appeal. The
respondent has moved to strike Monk’s excerpts of record and brief on appeal, on
the ground that they contain numerous materials and arguments that were not
before the district court when it dismissed Monk’s § 2254 Petition. Monk asserts
that consideration of his additions is “mandatory” in an actual innocence case and
that we may take judicial notice of his additions in this case. We grant the
respondent’s motion to strike and deny Monk’s request that we consider his
additions to the record.
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The general rule is that we will only consider on appeal those matters that
were, in fact, presented to the district court. Barcamerica Int’l USA Trust v.
Tyfield Importers, Inc., 289 F.3d 589, 595 (9th Cir. 2002); Lowry v. Barnhart, 329
F.3d 1019, 1024 (9th Cir. 2003); Fed. R. App. P. 10. This court’s decision in Lee
v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc), on which Monk relies, does
not make consideration of the additional materials that Monk has offered in
support of his actual innocence claim “mandatory.” See also Lowry, 329 F.3d at
1024 (recognizing a “mandatory” consideration exception). In Lee, we were not
presented with any evidence that had not been considered by the district court.
Compare Lee, 653 F.3d at 943 (identifying the “new” evidence), with Lee v.
Lampert, 607 F. Supp. 2d 1204, 1217 (D. Or. 2009) (same). Thus, when we stated,
“The habeas court [must] ‘consider[ ] all the evidence, old and new, incriminating
and exculpatory,’ admissible at trial or not,” to decide an actual innocence claim,
Lee, 653 F.3d at 938 (quoting House v. Bell, 547 U.S. 518, 538 (2006)), we meant
all of the evidence, old and new, put before the federal district court. We plainly
did not mean any and all evidence, old or new, that the petitioner might ever
discover or that had never been presented to the court below.
Nor is taking judicial notice of the additions appropriate here. See Lowry,
329 F.3d at 1024 (also recognizing a “judicial notice” exception). The transcripts,
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affidavits, and interview statements on which Monk relies contain disputed factual
allegations, do not allow the ready determination of those factual disputes, may be
self-serving, and may contain hearsay. See Reina-Rodriguez v. United States, 655
F.3d 1182, 1193 (9th Cir. 2011) (transcripts); Henderson v. Oregon, 203 F. App’x
45, 52 (9th Cir. 2006) (affidavits and statements). Also, “the district court has not
had an opportunity to consider [documents issued only after its decision], and the
parties’ [new] arguments are not developed against the district court decision.”
Ctr. for Bio-Ethical Reform, Inc. v. City & County of Honolulu, 455 F.3d 910, 919
n.3 (9th Cir. 2006). Finally, Monk’s new arguments rely on additions to the
factual record beyond what the parties had developed below; to the extent that they
rely on the factual record that was developed in the state trial court, they do so in a
way that was not developed in the federal district court below; and consideration of
those arguments would prejudice the respondent, who has not had the opportunity
to develop the record below. See Dream Palace v. County of Maricopa, 384 F.3d
990, 1005 (9th Cir. 2004).
2.a. We answer “no” to the question, has Monk made a credible claim of
actual innocence that excuses his untimely filing of his § 2254 Petition? Monk
must support his actual innocence claim with “‘new reliable evidence’” that was
not presented at trial. Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 324). The
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only “new” evidence properly before us is the 2008 affidavit of Juan Rayford.
Monk contends that he only discovered that Rayford had pertinent information
when they were both serving time at the same prison. Monk does not meet the
“exacting standard” to show that this is an “extraordinary case” in which it is
probable that “‘reasonable, properly instructed jurors’” would acquit him in light
of Rayford’s affidavit. Id. (quoting House, 547 U.S. at 538); accord McQuiggin v.
Perkins, ___ U.S. ___, ___, 133 S. Ct. 1924, 1928 (2013). Rayford’s affidavit is
remote in time from the actual events it purports to describe, and there are no other
indicia of reliability, trustworthiness, or credibility to the affidavit. Specifically,
Rayford is serving sentences for multiple felony convictions; his affidavit is short,
conclusory, and lacking in details; his central assertion, that Bell told him someone
other than Monk shot Bell, is untrustworthy hearsay; the affidavit contradicts both
the evidence at Monk’s second trial and Monk’s own representations on this
appeal, specifically about whether B.I.G. and 2-1 were rival gangs; and Rayford’s
affidavit is contrary to Bell’s repeated identifications of Monk as the shooter.
b. Even if we were to consider all of the materials and arguments that
Monk offers on appeal, including a second affidavit, by Jermaine Marshall, the
result would be the same. Marshall’s 2011 affidavit, like Rayford’s, is
untrustworthy hearsay about what Bell purportedly told Marshall about the
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shooting, and it is remote in time from the actual events it purports to describe.
Also, neither Rayford nor Marshall offered his affidavit about what Bell
purportedly told him until Bell was conveniently dead. Thus, the “new” affidavits
by Marshall and Rayford are not probative of Monk’s actual innocence.1
Monk relies on other purportedly new evidence in support of his actual
innocence claim, consisting of transcripts, affidavits, and interview statements.
This evidence is insufficient, because it depends upon disputed testimony and
disputed inferences known to Monk at the time of his second trial and disputed
inferences from unreliable evidence. See Lee, 653 F.3d at 938; Reina-Rodriguez,
655 F.3d at 1193; Henderson, 203 F. App’x at 52. Thus, it is not sufficient to meet
the “exacting standard” to show that this is an “extraordinary case” in which “‘it is
more likely than not that no reasonable juror would have convicted [Monk] in light
1 In his additional citations, Monk relies on our recent decision in Clark v.
Cate, ___ F. App'x ___, No. 11-55646, 2014 WL 2922654, *2 (9th Cir. June 27,
2014), as demonstrating the sufficiency of his “new evidence.” His reliance is
misplaced. In Clark, not only did the defendant’s wife report that a “reluctant”
trial witness had recanted his identification of the defendant at trial just a month
after the defendant’s sentencing, but the witness himself signed two affidavits
recanting his trial testimony within two years of the defendant’s sentencing. Thus,
the witness’s “multiple recantations of his trial testimony present[ed] a compelling
claim of actual innocence” in Clark. In contrast, the unreliable hearsay reports
here—that Bell told others that Monk was not the shooter—surfaced only after Bell
died and are far from compelling.
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of the new evidence.’” Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327);
accord McQuiggin, ___ U.S. at ___, 133 S. Ct. at 1928.
AFFIRMED.
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