NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY SMITH,

Petitioner

- Appellant,

v. MATTHEW BROOMFIELD, Warden, San Quentin State Prison,

Respondent

- Appellee. No. 20

- 17037
D.C. No. 3:19

- cv - 08152

- SI

MEMORANDUM *

Appeal from the United States District Court for the Northern District of California Susan Illston, District Judge, Presiding Argued and Submitted November 15, 2022 San Francisco, California Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK, * * District Judge.

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

- 3.

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 

# FILED

JAN 19 2023
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Petitioner Troy Smith appeals the district court’s order denying his motion to proceed with a second habeas corpus petition

. We have jurisdiction under 28 U.S.C. § 2253(a) and review de novo a district court’s determination that a habeas petition is “second or successive” for purposes of 28 U.S.C. § 2244(b). Wentzell v.
Neven , 674 F.3d 1124, 1126 (9th Cir. 2012) . We affirm.

T his case arises out of a robbery of a San Francisco jewelry store

. Smith
was convicted of robbery and related offenses in 2006

. In his first habeas petition , Smith raised a Brady claim regarding the pros ecution’s failure to timely disclose a history of misconduct by Inspector Gardner, the lead in vestigat or
. We affirmed the
district court’s deni al of the petition

. Smith v. Chappell , 664 F. App’x 621, 623 ( 9th Cir. 2016)

. Smit h claim s that in December 2016, he re ceived a declaration by George
Turner in the mail

. Turner died on December 15, 2016, nine days after purportedly signing the declaration

. The declaration states that Turner was one of the robbers , that Smith was innocent of the robber y , that the lead state prosecutor met with Turner in the absence of Turner’s counsel and conditioned Turner’s plea agreement on him not testifying in Smith’s favor , and that there are innocent explanations for
otherwise

- incriminating evidence found by I nsp ector Gardner that were critical to
Smith’s conviction. In 2017, Smith filed a state

- court habeas petition b ased on the
Turner declaration. Smith raised two claims: prosecutorial misconduct that3

violated his constitutional rights and a Brady violation over the failure to disclose
I nspector Gardner ’s history of misconduct

. The San Francisco Superior Court denied the petition on the merits in an

o rder that was the last reasoned state

- court decisi on. After exhausting his state

court claims , Smith filed another habeas petition in federal court

. 1 T he district
court held that his petition did not satisfy the gatekeeping requirements of § 2244(b) for “second or successive” habeas petitions.
Under t he Anti

- Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) , federal courts may grant a writ of habeas corpus only if the state
court’s decision on the merits was either “ contrary to , or involved an unreasonable application of

, clearly estab lished F ederal law ” or “ based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d); Miller

- El v. Cockrell , 537 U.S. 322, 340 (2003)

. State

- court findings of fact are to be presumed “correct” unless
the petitioner rebuts the presumption wit h “ clear and convincing evidence , ” 28
U.S.C. § 2254(e)(1) , and are “ not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance , ” Wood v.
Allen , 558 U.S. 290, 301 (2010)

. “ AEDPA greatly restricts the power of federal
courts to award relief to state prisoners who file second or successive habeas

1 Smith first sought and obtained leave from this court to file a “second or successive” petition. Dkt. No. 8.4

corpus applications.” Tyler v. Cain , 533 U.S. 656, 661 (2001 ). If a habeas petitioner “asserts a claim that was not presented in a previous

pe tition, the claim must be dismissed unless it falls within one of two narrow exceptions

. ” Id. at 661

– 62 (emphasis in original)

. The exception relevant here requires that: (B) (i) the factual predicate for the claim could not have been discovered previous ly through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). The district court correctly determined that Smith’s prosecutorial
misconduct claim fails because he has not demonstrated that he exercise d due diligence in discovering the factual predicate for this claim

. T he due

- diligence determination “turns on two factors: (1) whether the petitioner was on inquiry notice to investigate further, and, if so, (2) whether the petitioner took reasonable
step s to conduct such an investigation.” Solorio v. Muniz , 896 F.3d 914, 921 (9th Cir. 2018)

. Smith “was on inquiry notice to investigate further” from the point in his jury trial in 2006 when Turner did not testify for Smith despite telling Smith’s
counsel that he would testify and offer exonerating evidence . However, Smith
“did not make any attempts to obtain this exculpatory evidence from Mr. Turner5

after his trial,” or credibly explain why he made no attempt to contact Turner in the intervening decade.
Even if we found that Smith demonstrated due diligence, his claim would not satisfy § 2244(b)(2)(B)(ii) , as the facts underlying t h e claim originate from a declaration that is inadmissible hearsay under both federal and California law. Without admissible new evidence, Smith necessarily cannot show “by clear and convincing evidence” that “no reasonable factfinder” would have convicted him. § 2244(b)(2)(B)(ii)

. Turner’s declaration is not admissible as a dying declaration
because the s tatements are not about the “cause or circumstances” of his death, and
he did not make those statements while believing his death to be “ imminent. ” Fed. R. Evid. 804(b)(2 ) ; see Cal. Evid. Code § 1242 (West 2022)

. California has no residual hearsay exception. In re Cindy L. , 947 P.2d 1340,
1348 (1997) ; see Cal. Evid. Code § 1200(b) (West 2022)

. But even if the federal rules were relevant here, Turner’ s declaration is not admissible under the residual hearsay excep tion

. See Fed. R. Evid. 80 7

. The state court made a detailed
evaluation of both the declaration and its statements. 2 Smith has not demonstrated with clear and convincing evidence that th at court’s factual determinations

2 For example, t he state court found “highly unlikely” the declaration’s explanations for how Smith’s fingerprints end ed up on an incriminating piece of evidence and noted that the declaration did not name any of Turner’s companions during an event even though video evidence showed he was accompanied by another person at that time.6

regarding the declaration’s lack of trustworthiness were incorrect , and w e do not
find un reasonable its conclusion that “the declaration is not credible

. ”
Smith’s Brady claim must be dismissed because it was “presented in a prior application.” 28 U.S.C. § 2244(b)(1). This court has already determined that the belatedly disclosed Brady evidence regarding Inspector Gardner’s credibility
would have been “highly probative impeachment material” bu t that “ it was not
unreasonable for the state court to conclude that there [ wa s ] not a reasonable probability that ” the evidence “ would have changed the jury’s verdict ” in light of the strength of the evidence against Smith. Chappell , 664 F. App’x at 623

. Smith
contends that his second Brady claim is different because the statements in Turner’s alleged declaration

— by providing a plau sible, innocent explanation to the incriminating evidence that Gardner found

— provide the “materiality” of the Brady
violation.
But a “ claim in a successive petition is barred when its ‘basic thrust or gravamen’ is the same as a claim that’s already been raised, even if it’s supported by new factual allegations or legal arguments.” Gimenez v. Ochoa , 821 F.3d 1136,
1141 (9th Cir. 2016) (quoting Babbitt v. Woodford , 177 F.3d 744, 746 (9th Cir. 1999)). As the district court determined, t he statements in Turner’s declaration are merely “new factual allegations” and Smith’s rel iance on them for the “materiality” of the Brad

y violation is merely a new “legal argument” for a claim7

that the state court has already held was “decided and denied.” We may still hear the merits of a second or successive habeas petit ion if failure to do so would result in a “miscarriage of justice,” a limited exception for habeas petitioners who can show that “a constitutional violation has probably
resulted in the conviction of one who is actually innocent.” Schlup v. Delo , 513 U.S. 298, 327 (1995) ( citation omitted )

. Here , the state court ha s already decided that Smith does not meet this high standard, and Smith does not rebut this conclusion with “clear and convincing evidence.” 28 U.S.C. § 2244(b)(2)(B)

. Smith’s bare

- bones argument that this is “a truly extraordinary case in which the
evid ence establishes that appellant is actually innocent , ” does not “persuade u s that every juror would have voted to acquit him

. ” Lee v. Lampert , 653 F.3d 929, 946 (9th Cir. 2011) (Kozinski, J. concurring) (citing Schlup , 513 U.S. at 327)

. AFFIRMED.