Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (emphasis in original). “To ascertain the level to which such errors taint the constitutional sufficiency of the trial, they must ‘be evaluated in the total context of the events at .trial.’ ” See Paradis v. Arave, 130 F.3d 385, 393 (9th Cir. 1997) (quoting Frady, 456 U.S. at 169, 102 S.Ct. 1584). Lastly, the “miscarriage of justice” exception is limited to habeas petitioners who can show, based on “new reliable evidence,” that “ ‘a constitutional violation has probably resulted in the conviction of one who is actually innocent.’” Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Murray, 477 U.S. at 496, 106 S.Ct. 2639); see, e.g., Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001) (<HOLDING>). Here, Petitioner summarily argues that the
holding that to show prejudice in a claim of ineffective assistance of appellate counsel the petitioner must show a reasonable probability that but for counsels errors the result of the proceeding would have been different holding that petitioners challenge to jury instructions in light of some new cases did not demonstrate his actual innocence because petitioner only asserts legal innocence not actual innocence holding that petitioner did not fairly present federal due process claim by bringing a somewhat similar but doctrinally distinct miscarriage of justice claim under the california constitution holding that a petitioner must show  that the outcome of his appeal would have been different had counsel raised the issue holding petitioner must establish factual innocence in order to show fundamental miscarriage of justice would result from application of procedural default