NOT FOR PUBLICATION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

p etition for w rit of h abeas c orpus , 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, CLER K U.S. COURT OF APPEAL S2 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 petitio ns 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 o pposition to the State’s m otion to d ismiss, 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

“ T he petitioner cannot be allowed to present his reasons against the validi ty of the judgment against him piecemeal by successive proceedings for the same general purpose.” Id. at 741.
Further more , Tizeno had proper notice and an opportunity to respond. In
addition to conced ing that his petition was barred by California’s pro cedural rule against piecemeal presentation of claims in a previous brief , Tizeno received notice
of the bar and it s 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. T his 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 i nnocence] 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 rais ed Clark ’s untimeliness bar.4 15

- 56150

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