NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES RAY SHORB,

Petitioner

- Appellant,

v.

MARK NOOTH,

Respondent

- Appellee. No. 17

- 35102

D.C. No. 2:14

- cv

- 02005

- SB

MEMORANDUM *

Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding

Argued and Submitted May 17, 2018

Portland, Oregon

Before: TASHIMA, McKEOWN, and PAEZ, Circuit Judges.

Charles Shorb appeals the district court’s deni al of his petition for writ of

habeas corpus as untimely under 28 U.S.C. § 2244(d) . We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

1. Shorb is not entitled to one court

- day of equitable tolling . The prison

mail system delays and attorney error alleged do not amount to “extraordinary

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUN 21 2018

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

circumstance [s] ” that prevented the timely filing of Shorb’s state petition for post

conviction relief (“PCR”)

. Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005). As for

the prison mail system, Shorb all eges only “ delays inherent in the process of prison

communication,” which do not amount to an extraordinary circumstance. S ee

Ramirez v. Yates , 571 F.3d 993 (9th Cir. 2009). With respect to attorney error,

Shorb’s attorney’s decision to mail the signed PCR to the state court on the day it

was due at most constituted “garden variety” negligence rather than “egregious

professional misconduct.” Luna v. Kernan , 784 F.3d 640, 646 (9th Cir. 2015)

(citing Sandvik v. United States , 177 F.3d 1269, 1271

– 72 (11th Cir. 1999)).

Finally, because Shorb has not made any “allegation that would, if true, entitle him

to equitable tolling,” we decline to vacate the district court’s order and remand for

further factual development. 1 Laws v. Lamarque , 351 F.3d 919, 921 (9th Cir.

2003).

2. Shorb has not come forward with new evidence sufficient to trigger the

“actual innocence” exception to the statute of limitations. F or the exception to

apply, a habeas petitioner must show that “it is more likely than not that no

reasona ble juror would have convicted him in light of the new evidence.”

1 We do not consider Shorb’s allegation , made for the first time during oral argument, that his form er attorney affirmatively misle d him as to the timely filing of his habeas petition. See Recycle for Change v. City of Oakland , 856 F.3d 666, 673 (9th Cir. 2017)

.3

McQuiggin v. Perkins , 569 U.S. 383, 399 (2013) (quoting Schlup v. Delo , 513 U.S.

298, 327 (1995)). The habeas court must consider “all the evidence, old and new,

incriminating and exculpat ory, admissible at trial or not.” Lee v. Lampert , 653

F.3d 929, 938 (9th Cir. 2011) (internal quotation marks omitted).

Here, Shorb has failed to establish that no reasonable juror would ha ve

convicted him of raping and sexually abusing his adoptive gr anddaughter, B.C., in

light of new polygraph and alibi evidence. The polygraph evidence is not

sufficiently reliable to support a claim of actual innocence on its own. See United

States v. Scheffer , 523 U.S. 303, 309 (1998) (“[T]here is simply no consens us that

polygraph evidence is reliable.”). Shorb fares no better when the polygraph

evidence is considered in combination with the purported alibi evidence that he

would often sleep during the daytime. Shorb’s new evidence must be weighed

against the tri al evidence consisting of B.C.’s consistent testimony, which was

corroborated by her statements to police officers, a counselor, a Department of

Human Services worker, and a physician. In light of all the evidence, old and new,

Shorb has failed to demonst rate his actual innocence.

AFFIRMED.