851 (requiring petitioner to present new reliable evidence, such as exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence, to establish actual innocence), and Harvey has offered no such evidence in support of his claim of actual innocence. Harvey does not claim that new evidence shows he is factually innocent of killing Wilbert Reid. Rather, he claims that he is innocent under our decision in Barker because the jury was erroneously instructed on self-defense and we have no way of knowing what effect the erroneous instruction had on the verdict. However, Harvey’s challenge to the jury instructions rests upon asserted legal innocence. See Ellis v. d. Jan.10, 2003), rev’d in part on other grounds, Canaan v. McBride, 395 F.3d 376 (7th Cir.2005) (<HOLDING>); Fleming v. Olson, 1998 WL 34093762, at *5
holding that because the jury instructions were not improper the failure of petitioners trial counsel to object or request an additional instruction was not objectively unreasonable holding that the ninth circuit erred because the state appellate courts conclusion that one incorrect statement in jury instructions did not render the instructions likely to mislead the jury was not unreasonable holding that petitioners challenge to jury instructions did not demonstrate his actual innocence because it rested upon asserted legal error 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 if jury instructions viewed as a whole fairly state the applicable law to the jury the failure to give particular instructions will not be error