Fultcher v. Hatcher, 63 F. App'x 386

MEMORANDUM ^**

Nevada state prisoner Alfred Ramaz Fultcher appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as time-barred. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we affirm.

Fultcher’s federal petition was filed more than a year after his state court conviction became final, and thus it is time-barred unless some form of tolling applies. See 28 U.S.C. § 2244(d)(1). Fultcher contends that he is actually innocent and that actual innocence is an exception to the one-year statute of limitations. We have not decided whether actual innocence is an exception in such circumstances. See Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir.2002) (declining to decide the issue). We need not reach the issue in this case. Even if the exception applied, Fultcher has not established that he is actually innocent, because he has proffered no new evidence indicating that the knife he used was, in fact, not inherently dangerous. See Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (stating that to establish actual innocence, a prisoner must show that “in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him”) (internal quotation marks omitted).

Thus, the district court properly dismissed Fultcher’s petition.¹

AFFIRMED.

Notes

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We deny Fultcher’s motion to broaden the certificate of appealability, as well as all other pending motions.

Case Details

Case Name: Fultcher v. Hatcher

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 19, 2003

Citations: 63 F. App'x 386; No. 02-16409

Docket Number: No. 02-16409

Court Abbreviation: 9th Cir.