NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HOLLINS TIZENO, 

Petitioner-Appellant, 

 v. 

RAYMOND MADDEN, Warden, 

Respondent-Appellee.

No. 15-56150 

D.C. No. 

2:12-cv-05157-BRO-RNB 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted March 6, 2019

Pasadena, California

Before: FERNANDEZ and M. SMITH, Circuit Judges, and CHRISTENSEN,**

Chief District Judge.

Petitioner Hollis Tizeno appeals the district court’s order denying his 

petition for writ of habeas corpus, arguing that the district court erred by raising

procedural default sua sponte and by finding that he failed to show actual 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Dana L. Christensen, Chief United States District 

Judge for the District of Montana, sitting by designation.

FILED

MAR 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 15-56150 

innocence to overcome procedural barriers pursuant to Schlup v. Delo, 513 U.S. 

298 (1995). We have jurisdiction pursuant to 18 U.S.C. § 1291, and we affirm.

1. We have held that the district court retains “discretion to raise procedural 

default sua sponte if doing so furthers” the interests of comity, federalism, and 

judicial efficiency, as long as the court “give[s] a petitioner notice of the 

procedural default and an opportunity to respond to the argument for dismissal.” 

Boyd v. Thompson, 147 F.3d 1124, 1127–28 (9th Cir. 1998). 

We find these interests furthered in this case. The California Supreme Court 

cited In re Clark, 855 P.2d 729, 740–41 (Cal. 1993), in its summary denial of 

Tizeno’s petition. As explained in Clark, that court has long imposed “the rule that 

absent a change in the applicable law or the facts, [it] will not consider repeated 

applications for habeas corpus presenting claims previously rejected,” and “refused 

to consider newly presented grounds for relief which were known to the petitioner 

at the time of a prior collateral attack on the judgment.” Id. at 740. We need not 

determine whether the bar against piecemeal or successive petitions is an adequate 

and independent state ground to find that the interests of comity and federalism are 

furthered by raising the bar sua sponte. Judicial efficiency also supports raising the 

procedural bar. In Tizeno’s opposition to the State’s motion to dismiss, he 

specifically conceded that his claims are barred due to California’s procedural rules 

regarding piecemeal presentation of claims. In fact, Tizeno cited Clark, quoting,
3 15-56150 

“The petitioner cannot be allowed to present his reasons against the validity of the 

judgment against him piecemeal by successive proceedings for the same general 

purpose.” Id. at 741. 

Furthermore, Tizeno had proper notice and an opportunity to respond. In 

addition to conceding that his petition was barred by California’s procedural rule 

against piecemeal presentation of claims in a previous brief, Tizeno received notice 

of the bar and its consequences when the magistrate judge filed his Report and 

Recommendations with the district court. Tizeno then had the opportunity to 

respond by filing objections to the magistrate judge’s findings. This is sufficient 

under Boyd.

1

2. Even assuming we review a Schlup claim de novo, Tizeno fails to meet the 

Schlup standard. “To be credible, such a[n actual innocence] claim requires 

petitioner to support his allegations of constitutional error with new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness 

accounts, or critical physical evidence—that was not presented at trial.” Schlup, 

513 U.S. at 324 (emphasis added). Tizeno presents only unreliable and incredible 

evidence from a witness’s recantation testimony to establish actual innocence. 

 

1 Because we find the district court acted within its discretion in raising the 

procedural bar, we do not address whether the State specifically raised the bar 

against piecemeal or successive litigation when it generally raised Clark’s 

untimeliness bar.
4 15-56150 

This cannot meet Schlup’s high standard. See id. at 321 (establishing that the 

Schlup gateway is intentionally “‘rare’ and [] only [] applied in the ‘extraordinary 

case’”). 

AFFIRMED.2

 

2 We deny Tizeno’s motion to stay and remand the case. Even if his Brady claim 

has merit, it faces the same procedural bars as his other claims, and remand would 

therefore be futile.