NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRYCE EVERETT PETERSON, 

Petitioner-Appellant, 

 v. 

ATTORNEY GENERAL FOR THE STATE 

OF MONTANA; JIM SALMONSEN, 

Respondents-Appellees.

No. 22-35732 

D.C. No. 9:17-cv-00019-DLC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Submitted February 7, 2024**

Portland, Oregon

Before: McKEOWN, BYBEE, and BRESS, Circuit Judges.

Bryce Peterson appeals the district court’s denial of habeas relief under 28 

U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We 

“review the district court’s denial of a habeas petition de novo.” Prescott v. Santoro, 

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

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 9 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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53 F.4th 470, 477 (9th Cir. 2022). The district court’s denial of discovery is 

reviewed for abuse of discretion. Smith v. Mahoney, 611 F.3d 978, 997 (9th Cir. 

2010), as amended. We affirm.

1. Because Peterson’s claims were adjudicated on the merits in Montana state 

court, he must satisfy the requirements of 28 U.S.C. § 2254(d) to be eligible for 

relief. Under § 2254(d), Peterson “bears the burden of demonstrating that the state 

court’s ruling ‘was so lacking in justification that there was an error well understood 

and comprehended in existing law beyond any possibility for fairminded 

disagreement.’” Prescott, 53 F.4th at 477 (quoting Harrington v. Richter, 562 U.S. 

86, 103 (2011)). Peterson has not demonstrated that his judicial bias claim meets 

this standard.

To the extent Peterson advances a freestanding claim of actual innocence, 

such a claim “is not based on clearly established federal law,” and so Peterson would 

have to show, under § 2254(d)(2), that the state court decision “was based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

court proceeding.” Id. at 478–79 (quoting 28 U.S.C. § 2254(d)(2)). Peterson does 

not frame his actual innocence arguments within the strictures of § 2254(d)(2). But 

even assuming his arguments could be construed in this manner, Peterson would 

have to “show ‘that an appellate panel, applying the normal standards of appellate 

review, could not reasonably conclude that the [state court’s] finding is supported 
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by the record,’” or that “no appellate court could reasonably hold ‘that the state 

court’s fact-finding process was adequate.’” Id. at 479 (first quoting Hibbler v. 

Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012); and then quoting Lambert v. 

Blodgett, 393 F.3d 943, 972 (9th Cir. 2004)). Peterson’s proffered evidence does 

not meet these standards.

2. Even without the deference accorded to state court judgments under 

§ 2254(d), Peterson’s claims fail. To demonstrate judicial bias, Peterson must 

“show[] . . . an undue risk of bias, based on the psychological temptations affecting 

an ‘average judge.’” Echavarria v. Filson, 896 F.3d 1118, 1128 (9th Cir. 2018)

(quoting Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 881 (2009)). Peterson 

submitted affidavits containing hearsay allegations about an improper relationship 

between his sentencing judge and victim, and he also points to Facebook messages 

purportedly authored by the victim. But he does not provide any non-speculative 

evidence of judicial bias at the time of his sentencing, or at any time.

Nor did the district court abuse its discretion in denying Peterson’s requested 

discovery. “[T]here is no general right to discovery in habeas proceedings.” Rich 

v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999), as amended. Peterson has no 

concrete evidence showing that the judge and victim were in a relationship at the 

time of his sentencing. And he does not explain how his requested discovery would 

change matters. The district court thus did not abuse its discretion in concluding that 
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Peterson had not shown good cause for discovery under Rule 6 of the Rules 

Governing Section 2254 Cases.

3. Peterson has not shown actual innocence to overcome the procedural 

default (untimeliness) of his other claims. Actual innocence “does not merely 

require a showing that a reasonable doubt exists in the light of the new evidence, but 

rather that no reasonable juror would have found the defendant guilty.” Schlup v. 

Delo, 513 U.S. 298, 329 (1995). To satisfy this standard, Peterson must proffer 

“evidence of innocence so strong that we cannot have confidence” in his Alford plea.

Griffin v. Johnson, 350 F.3d 956, 963 (9th Cir. 2003) (alterations omitted) (quoting 

Schlup, 513 U.S. at 316). Peterson’s evidence does not meet this standard. 

First, as to aggravated assault, Peterson submitted an affidavit and 

pathologist’s report to contend that the victim inflicted additional injuries on herself 

after the events that led to Peterson’s conviction. But neither piece of evidence alters 

the eyewitness accounts and other evidence of the victim’s injuries on the day of the 

altercation. Peterson’s pathologist report also concluded that there was both 

evidence of an altercation and evidence of later injuries. Evidence that the victim 

had injured her ear in childhood was also known at the time of trial and not indicative 

of whether Peterson caused further injury. This evidence does not show that “no 

juror, acting reasonably, would have voted to find [Peterson] guilty beyond a 

reasonable doubt” on the aggravated assault charge. Schlup, 513 U.S. at 329.
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Second, as to assault with a weapon, Peterson cites his father’s time-of-travel 

analysis and the failure of police to discover the handgun Peterson used to threaten 

the victim. But Peterson’s father’s analysis, which supposedly would put Peterson 

and the victim at a different location, is inconclusive. Peterson’s own investigator 

at sentencing also conceded that telephone records do not prove that Peterson and 

the victim were not at the residence when the officer performed the welfare check. 

And even without the handgun, a reasonable juror could find the victim’s allegation 

credible, especially given other evidence that Peterson had displayed a handgun after 

assaulting the victim on a separate occasion.

Third, as to aggravated kidnapping and aggravated burglary, Peterson argues 

that he was trying to save the victim from a lithium overdose. In support of his story, 

he attacks the victim’s credibility with her other inconsistencies and the dimensions 

of his truck interior. But this evidence is not so conclusive as to contradict the 

victim’s account and other evidence that Peterson kidnapped her.

Because Peterson’s claim of actual innocence fails, the district court properly 

denied the motion to amend the petition as futile. See Bonin v. Calderon, 59 F.3d 

815, 845 (9th Cir. 1995). The denial of Peterson’s request to take discovery of trial 

counsel was also proper because the underlying claim was time-barred.

AFFIRMED.