F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D E A R C E Y J A M

U L S T E W

A R T , Petitioner-Appellant

,

v

.

M A T T H E W L

. C A T E ,

Respondent-Appellee

. N o. 10-55985

D.C. No. 3:05-cv-01059- B TM-CAB

OPI NI ON

A ppeal from the United States District Court for the Southern District of California B arry T. Moskowitz , District J u dg e, Presiding

Arg ued and Submitted December 5, 2012—Pasadena, California

F iled November 1, 2013

B efore: Marsha S. B erz on and Sandra S. I kuta, Circuit J udg es, and J ennifer G. Z ipps, District J udg e. *

Opinion by

J udg e Z ipps; Dissent by J udg e B erz on

* T h e H o n o rab le J en n if

er G. Z ip p s, District J u d g e f o r th e U.S. District Co u rt f o r th e District o f

A rizo n a, sittin g b y

d esig n atio n

.S T E W A R T V

. C A T E 2

SUMMARY * *

Habeas Corpus

The panel affirmed the district c o u r t’s denial of an untimely 28 U.S.C. § 2254 habeas corpus petition.

The panel first determined that petitioner was not entitled
to statutory tolling for the 100-day g ap between the denial b y the California Court of Appeal of petitioner’s habeas petition and the filing of h is petition in the California Supreme Court because there was no “properly filed” petition pending in
state court d

uring that time, and because the delay was unreasonable.

Reviewing for abuse of discretion, the panel nex t held that petitioner f

ailed to pass throug h the actual innocence g ateway

o f S c h l up v

. Delo

, 513 U.S. 298 (1995), and that the district court properly

denied an evidentiary

hearing

.

J udg e B e r z o n dissented. She w ould hold that p etitioner

was entitled to statutory tolling because the 100-day g ap was reasonable. A lternatively

, J udg e B erz on would remand with instructions to hold an evident i a ry hearing o n petitioner’s actual innocence cl a i m b ecause he h as presented postconvi ct ion evidence that, if credible, d emonstrates this case to be the sort of ex traordinary one that requires reaching the merits of p etitioner’s otherwise barred federal habeas claims. J u d g e B e rz o n would also r eview the Schlup claim d e n o v o instead of for an abuse of discretion.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.S T E W A R T V

. C A T E 3

COUNSEL

Kurt David Herman s e n (arg ued), L aw Office of Kurt David Hermansen, San Dieg o, California; J an Stig litz

, J u s tin B rooks, Alex a

nder Simpson

, a

n d A l i s s a B

jerkhoel, California I nnocence Project, San Di e go , California, for PetitionerAppellant.

Kevin Vienna (arg

ued), Supervising De p uty Attorney General; Kamala D. Harris, Attorney General of C al i fornia; Dane R. G illette, Chief Assistant Attorney General; Gary W. Schons, Senior Assistant Attorney General; Raquel M. Gonz a lez

, Deputy Attorney Genera l

, San Dieg o , California, for Respondent-Appellee.

OP INION

Z I PPS, District J udg e:

Appel l ant DeArcey J amul Stewart (“Stewart”) appeals from the district court’s denial of his 2 8 U.S.C. § 2254 h abeas petition a s untimely

. Stewart is serving a sentence in state prison of two life terms plus seven y ears fo l l o w ing convictions for a t t empted murder. After pursuing post -conviction r elief in state court, Stewart filed a Petition f o r W rit of H abeas Corpus pursuant to 28 U.S.C. § 225 4 i n t h e United States District Court for the Southern District o f California. A fter thoroug h review, the district cou rt denied Stewart’s f

e deral h abeas petition a s u n t imely

. O n appeal, Stewart c ontends that th e district c ourt erred in: ( 1 ) concluding that Stewart was not entitled to statutory tollin g o f h i s federal statute of limitations under § 2244(d); (2) concluding that Stewart h ad not e stablished an actualS T E W A R T V

. C A T E 4

innocence claim; (3) f

ailing to conduct an evidentiary h earing
p r ior to dismissing Stewart’s federal habeas petition; a n d (4) c oncluding that Stewart’s P e tition f ailed to adequately alleg e a fed e r a l c laim. W e affirm the district court’s denial of Stewart’s federal habeas petition.

I. BACK G ROUND

On September 23, 1995, br others Mark and Michael Parish were shot b y a passenge r i n a n earby vehicle while driving throug h an area of San Dieg o claimed by the Sky line Piru g ang , of which Stewart was a member. T h e P a r i sh brothers identifi e d S t e w art as the driver of the vehicle a nd Richard L ee a s the shooter. Stewart and L ee w e r e a r rested and charg e d in the Superior Court of Califo r n ia, County o f San Dieg o. Stewart and L ee were tried jointly and in the spring of 1996 b oth men were con v i cted on two counts o f attempted murder. 1 On J uly 1 8, 1996, Stewart was sentenced
to two life terms and seven y ears in state prison. Th e trial
court imposed consecutive terms o f life with the possibility

o f parole; Stewart also received a f ive-y ear sentenc i n g enhancement based on a prior conviction.

Stewart an d L ee b oth pursued several avenues o f post-conviction relief, most of which are not relevant to this appeal. Stewart filed a motion for a new trial and a direct appeal. B oth defendants jointly filed a petition for review in the California Supreme Court. O n Au gu s t 31, 2000, as a result of a state petition for writ of h abeas corpus filed by L ee and n ot joined by Stewart, L e e ’s c o nvictions for attempted murder were vacated. L ee’s p ost-conviction r elief was based

1 L ee w as also c o n v i cted on o n e co u n t o f assau lt o n a p eace o f f icer
stem m in g f ro m th e circu m stan ces o f

h is arrest.S T E W A R T V

. C A T E 5

on new evidence proffered by Darnell J a ckson, an informant (now in witness protection) who c laimed that Arnold Adkins,
not L ee , w a s t h e shooter, and that Stewart was the driver o f the vehicle from which the Parish brothers’ shooting occurred. The state did n ot oppose L ee’s petition, instead conceding that t h e newly discovered evidence was sufficiently cre dible to cast doubt on the integ rity o f L ee’s convictions.

F ollowing the vacatur of L ee’s convictions, on May 14, 2002, Stewart initiated the p ost-conviction relief proceeding s that form the basis of the pend i n g ap p e al. On that date, Stewart filed a petition for w ri t o f habeas corpus in the Superior Court of California, Cou n t y o f San Dieg o (“State Trial Court Petition”), 2 a sserting that n e w l y -discovered evidence proved that Darnell J a ckson, not S t e wart, was the driver of the vehicle from which the shot s w e r e fired. I n support of his petition, Stewart submitted d eclarati o n s from Roy Vinson, Arnold J ohn s o n a n d T a tiana Daniels. On December 17, 2002, after r eviewing the p etition, return a nd traverse, the Superior Court d enied t h e petition without a hearing on the g round that the declarations w ere n o t c redible. On F ebruary 6, 2003, Stewart filed a petit i o n f o r writ o f habeas corpus in the California Court of Appeal (“State Court of Appeal Petition”), claiming : ( 1) the newly -discovered evidence undermined the entire case of the p r o secution;

2 Calif o rn ia’ s co llateral rev iew sy stem d if f ers f ro m th at of o th er States in t h at it d o es n o t req u ire, tech n ically sp eak in g , ap p ellate rev iew o f a lo w er co u rt d eterm in atio n

. In stead it co n tem p lates th at a p riso n er w i ll f i le

a n ew “ o rig in al” h ab eas p etitio n

. S ee Ca rey v. S

a ffo ld

, 53 6 U.S. 2 14
, 2 2 1 (2 0 0 2). A cco rd in g ly

, w e ref er to th e p e t i t i on s f

iled b y Stew art i n th e Calif o rn ia trial, ap p ellate an d su p rem e co u rts as sep arate p et i t i o n s, alth o u g h th ey co llectiv e l y rep resen t Stew art’ s p o st- co n v ictio n litig atio n (an d ex h au s tio n ) in th e state co u rts o f th e p en d in g f

ed eral claim s.S T E W A R T V

. C A T E 6

(2) the trial court erred in deny ing Stew a r t ’ s petition; (3) Stewart is actually innocent; and (4) b ecause of the newly discovered e vidence, insufficient evidence s u p p o r t s S t e wart’s conviction. On May 23, 2 003, the Court of Appeal denied the petition, concluding that the declarati o n s w e re n ot conclusive,
not credible, and did not make a sufficient showing o f Stewart’s innocence. On A u g u s t 31, 2003, Stewart filed a petition f or writ of habeas corpus in the C a lifornia Supreme Court ( “S t a t e Supreme Court Petition”), r aising the same claims presented in h i s State Court of Appeal Petition. 3 On Au gu st 11, 2004, the California Supreme Court summarily denied the petition.

On May 17, 2005, Stewart filed a petition for w rit o f h abeas corpus in the United States District Court, Sou t h e r n District o f California, challeng ing the California state courts’ denial of his petitions for writ of habea s c o r p us (“§ 2254 Petition”). Stewart’s § 2254 Petition p resen t s f our c laims substantially identical to those made in his state pet itions: (1) newly

- discovered evidence undermines the entire case o f the p rosecution; (2) the state court erred in deny ing Stewart’s petition for writ of h abeas corpu s ; ( 3 ) Stewart is actually innocent; and ( 4) because of the newly -discovered evidence, insufficient evidence supports Stewart’s conviction.

On F ebruary 28, 2008, a mag istrate judg e issued a Report

a n d R e c o m m endation (“R& R”) recommending that Stew a r t ’ s

3 Stew art’ s State Su

p rem e Co u rt Petitio n w as d ated A u g u s t 3 1, 2 0 03 an d receiv ed b y th e Calif

o rn i a Su p rem e Co u rt on Sep te m

b e r 4
, 2 0 0 3

. T h e d istrict c o u rt co rrectly id en tif ied A u g u st 3 1
, 2 0 0 3 as th e d ate th at Stew art’ s State Su

p rem e Co u rt P etitio n w as f iled p u rsu an t to th e “ m ailb ox

ru le,” w h ich calcu lates a p ro se p riso n er l itig an t’ s f ilin g d ate f

ro m th e d ate th e d o cu m en t is d eliv ered to a p riso n of f icial f o r m ailin g

. S

ee Ho u sto n v. La ck , 4 8 7 U.S. 2 6 6 (1 9 8 8).S T E W A R T V

. C A T E 7

§ 2254 Petition be dismissed as untimely or, alternatively

, be denied because Stewart had n ot e stablished actual innocence and the r emaining claims d id no t p re sent federal questions. Stewart objected to th e R &R; he a lso filed a Motion for Discovery seeking to compel the State to disclose ex culpatory material and an Amended Motion for L eave to A m end the Petition in order to adequately plead the feder a l b a s i s of his claims.

On May 3 0
, 2 0 0 8, the district court issued an order declining to a dopt the R& R, g ranting Stewart leave to amend and requiring the State to f ile a response to Stewart’s Motion for Discovery

. The d istrict court concluded t h a t the State mig ht possess ex culpatory materia l w h ich could affect the court’s timeliness an a l y sis, and that therefore it was appropriate to rule o n the Mot i o n for Discovery prior to ruling o n the timel i n e s s o f the § 2254 Petition. I n doing so, the district court noted that Stewart’s federal § 2254 Petition

was untimely and not subject to statutory or equitable tolling

, but that Stewart mig h t avoid d ismissal if he co u l d p a s s throug h the “actual innocence g ateway ” o f Schlup v. D elo

, 513 U.S. 2 98 (1995). I n g ranting Stewart’s Motion for L e ave t o Amend, the district court accepted as filed Stew a r t ’s proposed Amend e d § 2 254 Petition, which purported to clarify the federal basis of Stewart’s claims.

During the course of b r iefing on Stewart’s Motion for Discovery

, the d i strict court conducted an in camera r eview of all documents upon which the State had relied in electing
not to oppose L ee’s state court habeas petition, as well as any other material in the State’s possession that cast doubt on the Parish brothers’ ey e-witness identificatio n o f Stewart. The district court also ex panded the record to include d eclarations from Stewart; Maurice L e ag ue, a fellow priso n er and anS T E W A R T V

. C A T E 8

associate of one of the victims; Rich a r d L ee; and Stewart’s

a t torney

. B ased on its review of the r ecord, on April 2 1
, 2010, the district court dismissed Stewart’s Amended § 2254 Petition a s u ntimely

, 4 concluding that Stewart had not satisfied the Schlup g ateway actual innocence standard. The district court also denied Stewart’s request for an evidentiary hearing on his Schlup claim. This appeal followed.

II. STANDARD OF REVIEW

W e review de novo the district court’s denial of a § 2254 petition on timeliness g rounds. Porter v. Ollison

, 6 20 F .3d 952, 958 ( 9t h Cir. 2010). F inding s o f fact made by the district cou r t a re reviewed for clear error. Moran v

. McDaniel

, 80 F .3d 1261, 1 26 8 ( 9 t h Cir. 1996). The Court accords a presumption o f correctness to factual finding s made by the state court. Id

. The dec i sion by the district court to decline to o rder an e v identiary hearing is reviewed for abuse of discretion. Roy v. Lampert
, 4 65 F .3d 964, 968 ( 9 th Cir. 2006).

III. ANALYSIS

A. Tim eliness of

the P e tition

28 U.S.C. § 2 244(d)(1) identifies four events that potentially trig g e r the running of AEDPA’s o ne-y ear statute

4 T h e trial co u rt also d en ied Stew art’ s Mo tio n f o r Disco v ery an d d irected th e Clerk o f th e Co u rt to f ile u n d er seal th e m aterial su b m itted in ca mera b y th e State.S T E W A R T V

. C A T E 9

of limitations. 5 The limitations period is s t a t u t o rily tolled, however, during the time that “a p roperly -filed application for State post-conviction or o ther collateral re v i e w with respect t o the pertinent judg ment or c laim is pending .” 2 8 U. S

. C

. § 2244(d)(2). T he district court applied 28 U

. S

. C

. § 2244(d)(1)(A), (B ) and ( D ) a n d calculated when the applicable limitations period would run under a var i e t y o f factual scenarios. Under most of those sc e n a r i os, Stewart’s § 2254 Petition was u n timely and not entitled to statutory tolling

. Ho w ever, with respect to its calculation under 28 U.S.C. § 2244(d)(1)(D), the district court noted conflicting evidence concerning when Stewart could have d iscovered the factual predicate of his federal c laims and trig g ered the
statute of limitations under that p rovision. T he court stated that, assuming without deciding that Stewart could not have di s c o v e red the factual predicate of h is c laims before May 6,

5 2 8 U.S.C. § 2 24 4 (d )(1 ) p ro v id es:

A 1- y ear p erio d o f lim i tatio n sh all ap ply to an ap plicatio n f

or a w ri t of h ab eas co rp u s b y a p erso n in

cu sto d y p u rsu an t to th e j u d g m en t o f a State co u rt. T h e lim itatio n p erio d sh all ru n f ro m th e latest o f

—(A ) t h e d a te on w

h ich t h e j u d g m en t b ecam e f

in al b y th e

co n clu sio n o f direct rev iew o r th e ex p iratio n of th e tim e f o r seek in g su ch rev iew ; (B ) t h e d ate o n w

h ich th e im p ed im e n t t o f

ilin g an ap p licatio n created b y State actio n in v io latio n o f th e C o n s titu tio n o r l a w s o f th e Un i ted States is rem ov ed

, i f th e ap p lican t w as p rev en ted f

ro m f ilin g b y s u ch State actio n ; (C) t h e d ate

o n w h ich th e co n stitu

tio n al rig h t asserted w as in i t i a lly

reco g n ized b y th e Su

p rem e Co u

rt, if th e rig h t h as been

n ew ly reco g n ized by th e Su p rem e C o u r t an d m ad e retro activ ely ap p licab le to cases o n co llateral rev iew ; or (D) th e d ate o n w

h ich th e f actu al p red icate o f th e claim

o r claim s p resen t ed co u ld h av e b een d isco v ered th r o u g h th e ex ercise o f

d u e d ilig en ce.S T E W A R T V

. C A T E 10

2002, 6 the statute was tolled on May 14, 2002 when Stewart filed his State Trial C o u r t Petition. The district court reasoned that if the statute of limitations was statutorily tolled from May 14, 2002 unti l A u g u st 11, 2004, when Stewart’s S t ate Supreme Court Petition was denied, then his § 2 2 5 4 P et i t ion was timely ; the clock ran from May 6 to May 14, 2002 (7 day s) and then from Aug ust 11, 2004 to May 15, 2005, w hen Stewart handed his § 2254 Petit i o n t o prison officials for mailing (an ad d i t i onal 277 day s). B ut, the district court ultimately con c l u d ed that Stewart’s § 2254 Petition was untimely because he was not entitled to statutory tolling during the entire perio d b et ween May 14, 2002 a nd Aug ust 11, 2004. Specifically

, the district c ourt concluded that d uring the 100-day g a

p between the May 23, 2003 denial of his State Court of Appeal Petition and the Aug ust 31, 2003 filing of his State Supreme Court Petition, no “properly filed”
state habeas petition was “pending ” in the state court under 28 U.S.C. § 2244(d)(2).

The time between the d e n i a l of a petition in a lower California court and the filing of a subsequent petition in the

nex t hig her state court does n ot toll the statute of limitations pursuant to 28 U.S.C. § 2 244(d)(2) if the latter petition is not timely filed. Carey v. S

affold , 536 U.S. 214, 225 ( 2 002). I n the absence o f a c l e a r i ndication b y the state supreme court that a petition is un t i m e l y , the federal court “must itself

ex a mine the delay

in each case and determine what the state
courts would have held in respect to timeliness.” E v ans v

. Chavis

, 5 46 U

. S

. 189, 198 (2006). California has a special

6 May 6, 2 0 02 is th e d ate th at Stew art o b tain ed th e d eclaratio n o f T atian a Dan iels; th e d istrict co u rt co n clu d ed th at Ms. D an iels’ s d eclaratio n w as th e f irst p i ece o f p o t en tially ad m issib le, ex cu lp ato ry ev id en ce Stew art

o b tain ed

.S T E W A R T V

. C A T E 11

sy stem g overning appeals when p r isoners seek relief on collateral r e v i e w

. Id. at 192. U nder that sy stem, the equival e n t o f a notice of appeal is timely if filed w ithin a “reasonable t ime.” Id

. (Stevens, J
., c oncurring ) ( citing In re Harris
, 5 Cal.4th 813, 82 8 n

. 7 (1993)). Thus, “the federal
court must decide whether the fi l i n g of the request for
sta t e

- court appellate review (in state collateral r eview proceeding s) was made within what California would consider a ‘reasonable time.’” Id

. at 198. California’s u se o f the “reasonableness” standard has p rompted the United States Supreme Court to note that it is “more difficult for federal

cour t s to determine just when a review application ( i.e
., a filing in a hig her court) comes too late.” Saffold

, 5 36 U.S. at 223. The Supreme Court has sug g ested that “ t h e C a lifornia
courts themselves mig h t alleviate the problem by clari f y ing the scope of the words ‘reasonable time’ in this contex t or b y indicating

, when deny ing a p etition, whether the f i l ing was timely

. And the Ninth Circuit mig ht s e e k guidance on the
matter by certify

ing a q u estion to the California Supreme Court in an appropriate case.” Chavis

, 5 46 U.S. at 199. 7 T o date, however, “California courts have g iven scant g uidance

as to what the State considers a ‘reasonable’ leng th of time to file an application for review.” Velasquez v. Kirk l and

, 639 F .3d 964, 968 (9th Cir. 2011). U n t il such g uidance is provided, the Supreme Court has instructed f ederal c ourts to apply a thirty -to-six ty

- day benchmark for California’s “reasonable time” r equirement, and courts in this circuit have

7 T h e Nin th C ircu it did certif y th is q u estio n to th e Calif o rn ia S u p rem e Co u rt in 2 0 0 8
, b u t th e C alif o rn ia Su prem e Co u

rt d en ied certif

icatio n

. S ee Ch a f fer v. Pro sp er , 5 9 2 F.3 d 1 0 4 6, 1 0 4 8 n .1 (9 th Cir. 2 0 1 0 ).S T E W A R T V

. C A T E 12

developed a larg e body o f case law which follows that instruction. Id . (collecting cases). 8

I n the present case, the district c ourt’s summatio n o f C alifornia timeliness rules was accurate. Stewart’s S t a t e Supreme Court Petition, filed 100 day s a fter the denial of his State Court of Appeal Petition, was summarily denied by the California Supreme Court. According ly

, the distri c t court

ex a mined whether the 100-day delay w as “reasonable” under California law. The district court, citing to Chavis and Culver

v. Director of Corrections
, 4 50 F

. Supp. 2d 1135, 1140–41 (C.D. Cal. 2006), s ummariz ed California law as g enerally
accep ting a 30-to-60-day delay as r easonable, but also permitting delay bey o nd that leng th of time if the p etitioner could e stablish g ood c a u se for the delay

. The district court concluded that Stewart’s 100-day delay was unreason a b l e a nd
not ex cused by g ood cause. According ly

, the dis t r i c t court concluded that Stewart’s state court petition w as not “pending ” after May 23, 2003 and therefore Stewart was not entitled to statutory t o l ling

. I n so holding

, the district court properly followed the United States Supreme Court ’s instruction to use a 30-to-60-day “benchmark” for timeliness under California law. The district court a lso corr ectly concluded that Stewart had failed to demonstrate g ood cause for the 100-day

delay

.

8 T h e d issen t su g g ests th at w e read Ch a vis to h old th at a d elay i n ex cess

o f 6 0 d ay s is p er se u n reaso n ab le u n d er C alif o rn ia law

. Dis. Op

. at 29

. W e h av e relied p rim arily o n th is C o u rt’ s d ecisio n in Vela sq u ez an d its

su m m ary o f th e larg e b o d y o f f ed eral case la w a p p ly in g a 3 0

– 6 0 d ay

“ ben ch m ark ” f

o r Calif o rn ia’ s rea s o n ab le tim e req u irem en t. W e ack n o w led g e th at th is b en ch m ark m ay b e ex ceed ed u n d e r ap p ro p riate circu m s tan ces.S T E W A R T V

. C A T E 13

Stewart arg ues on appeal that C alifornia law permits a 100-day g ap between state court post

- c onviction relief petitions. I n support of this c laim, Stewart cites to four Ca l i fo r n i a state court cases which permitted the filing of a habeas p etition in a hig her c o urt more than 100 day s after the lower court’s denial of the preceding habeas petition. I n e ach of those cases, a g ap of n i n e months to a y ear-and-a-half between state court filing s was permitted due to a finding of
g ood cause fo r the delay

. S e e In re Spears
, 204 Cal. Rptr. 333, 335–36 (Cal. Ct. A pp. 1984) (eig h t e e n -month delay between direct appeal and post-conviction relief proceeding s not barred by doctrine of laches because petitioner lacked capacity to represent h imself, leg al assistance available to indig ent prisoners is sc a

rce, and petitioner attempted to obtain leg al assistance to p ursue his case immediately upon affirmance of his conviction); In re Moss
, 221 Cal. Rptr. 645, 649 (Cal. Ct. App. 1985) (nine month delay not barred b y doctrine of laches where the delay was at t ributable to petitioner’s inability to secure appell at e counsel); In re Bower
, 700 P.2d 1269, 1273 n.3 (Cal. 1985) (noting without

ex p lanation that a one-y ear delay is acceptable); In r e Burdan

, 86 Cal. Rptr. 5 49, 558 (Cal. Ct. App. 2008) (finding

no substantial delay where unr e presented petitioner filed a petition for w rit of h abeas corpus in the Court of Appeal 10 months after denial of a similar petition in the superior court). However, these cases carry little persuasive weig ht. Spears
, Moss a nd Bower were decided before the California Supreme Court ex pressly relied on Harris ’s “reasonable time” lang uag e in 1993. 9 Spears and Moss discuss th e state’s

9 Ha rris relied o n In re Cla rk

, 8 5 5 P .2 d 72 9
, 7 3 8
, n .5 (Cal. 19 9 3), w h ich in ad d itio n to In re Ro b b in s , 9 5 9 P.2 d 3 1 1
, 3 1 7

- 1 8 (Cal. 1 9 9 8), is a case th at Calif o rn ia co u rts cu rren tly

u se to sig n al th at a case is u n tim ely

. S ee W a lker v. M

a r t i n , 1 3 1 S. Ct. 1 12 0
, 1 1 2 4 (2 01 1 ). A lth o u g h Stew artS T E W A R T V

. C A T E 14

“laches” arg ument w i t

hout reference to any “ reasonable time” standar d

. Bower ’s timeliness analy sis is cursory a nd contained within a footnote. F inally

, Burdan ’s h abeas petition challeng ed parole proceeding s a nd the Burdan court specifically ex plained that the timeliness rules apply w ith less f o r c e w here the petitioner is challeng ing a parole board determination. See 86 Cal. Rptr. at 558 (stating that a collateral attack on a c onviction must be t i m e l y in order to “v i n dicate society ’s interest in the finality of its criminal judg ments

. . . [ and] the public’s interest in the orderly a nd reasonably prompt implementation of its laws .

. . [ and that] requiring a prisoner to file his or her challe n ge promptly helps ensure that possibly vital evid en c e will not be lost

. . . [ and protects the] psy cholog ical repose that may come f or the victim [ at the close of a criminal proceeding ] .”).

Reg ardless, even if a 100-day delay is occasiona l l y permitted u

p on a showing of g ood caus e u nder California law, Stewart has f

ailed to d emonstrate g ood cause for the delay in this case. Stewart attempted to ex plain his d elay in filing his State Supreme Court Petition b y a lleg ing that “the investig ation reg arding newly discovered e vidence was not

com p l e t e until May 2002.” However, the May 2002 discovery o f information c ould n ot have any bearing on the 100-day g ap between the May 23, 2003 denial of Stewart’s State Court of Appeal Petition and the Aug ust 31, 2003 filing

co n ten d s th at Cla rk an d Ro b b in s ap p ly on ly to cap ital h ab eas p etitio n s, n o Calif o rn ia case ap p ears to m ak e th at d istin ctio n

. T o th e co n trary , sev eral Calif o rn ia Co u rt o f A

p p eal cases h av e ap p lied Cla rk an d Ro b b i n s to

n o n cap ital h ab eas p etitio n s. S ee, e.g

. , In re Nu n ez , 9 3 Cal. Rp tr.3 d 2 4 2
, 2 5 2 (Cal. Ct. A

p p

. 2 0 0 9 ); In re L u cero , 1 3 2 Cal. Rp tr. 3 d 4 9 9
, 5 0 4 (Cal. Ct. A pp

. 2 0 11 ). In ad d i tio n , th e Un ited States Su p rem e Co u rt ha s h e l d th at t h e Cla rk/Ro b b in s reaso n ab len ess s tan dard ap p lies to Calif o rn ia’ s

n o n

- cap ital h ab eas cases as w ell. S ee W a lker , 1 3 1 S. Ct. at 1 12 5

.S T E W A R T V

. C A T E 15

of his S tate Supreme Court Petition. Stewart arg ues on appeal that h e made an additional showing of g ood cause which the district court failed to c o n sider, namely that he was under p rison emerg ency status and had no ability to research his petition. This arg ument is similarly implausible. W e n ote that this “ex planation” appeared in the “Supporting Fa c ts” section of Ground 2 of his State Supreme Court Petition, not in the portion of the form petition w hich provides petitioners with the o pportunity to ex plain a fil i n g d elay

. Reg ardless,

e v e n if we consider Stewart’s “prison emerg ency stat u s ”

ar gu m e n t , it does not amount to a showing of g o od cause justify ing Stewart’s d ela y

. As the district court pointed out, “comparison of the appellate court habeas pet i t i o n and the
state supreme court habeas petition r eveals t h a t [Stewart] presented the same claims in both petitions” and that Stewart did n ot present any new evidence to the Ca lifornia Supreme Court. T hus, there is no indication that research was r equired in the preparation of Stewart’s State Supreme Court Petition. I n addition, thirty day s passed between t h e May 23, 2003 denial of Stewart’s State Court of App e a l Petition and the prison emerg ency alleg edly declared on J une 23, 2003, a nd there is nothing in the record to su gge s t t h at Stewart was immediately transferred on that date. Even if that emerg ency status were considered g o od c ause for d elay

, Stewart still h ad
at least 30 day s to f

ile his State Supreme C o u r t p etition (which was identical t o his State Court of Appeal petition) and he failed to do so.

According ly

, Stewart’s § 2254 Petition was not statutorily tolled during the 100-day g ap between the denial of Stewart’s State C o u rt o f Appeals Petition and the filing of his State Supreme Court Petition. S t e w a r t’s § 2254 Petition was not timely filed.S T E W A R T V

. C A T E 16

B. Actual Innocence Claim

.

“Actual innocence, if proved, serves as a g ateway throug h which a p etitioner may p a s s whether the impediment is a procedural bar

. . . [ or] e x p i r ation of the statute o f limitations.” McQuiggin v. Perkins

, 133 S. Ct. 1 9 24
, 1928 ( M ay 28, 2013). W h e n an o therwise time-barred habea s petitioner “pres ents evidence of innocence so strong that a court can n o t h a ve confidence in the outcome of the trial unless the c ourt is a lso satisfied that the trial was free of nonharmless constitutional error,” the Court may consider the petition on the merits. See Sc h l u p v

. Delo

, 513 U.S. 298 (1995). T he Supreme Court has recently cautioned, however, that “tenable actual-innocence g ateway pleas are r are.” McQuiggin
, 133 S. Ct. a t 1928. “[ A ] petitioner does not meet the threshold requirement unless h e persuades the district
court that, in lig ht of the new evidence, n o j u ror, acting reasonably

, would have voted to find h im g uilty bey ond a reasonable doubt.” Id. (citing Schlup

, 513 U .S. a t 329); see also House v. Bell

, 547 U .S. 518, 538 (emphasiz ing that the Schlup standard is demanding and seldom met). This ex acting standard sets an ex tremely hig h hurdle for Stewa rt. The Schlup standard permits review only i n the “ex traordinary ”

case. Schlup

, 513 U .S. at 3 2 4

– 27 (emphasiz ing that “ in the
vast majorit y o f cases, claims of a ctual innocence are rarely successful”). Under Schlup

, we must “assess how reasonable jurors would react t o t h e o verall, newly supplemented

re c o r d

, ” including all the evidence the petitioner n ow proffers. Lee v. Lampert
, 653 F .3d 929, 945 (9th Cir. 2011). I n conducting a S

chlup g ateway review, our “function is not to make an independent factual determination ab o u t what likely o c c u r r ed, but r ather to assess the likely impact of the evidence on reasonable ju r o rs.” House
, 547 U.S. at 538. Stewart contends that th e district court misapplied SchlupS T E W A R T V

. C A T E 17

because it made discrete factual finding s that relied on the prior jury ’s d e termination of f acts, as opposed to assessing how a reasonable juror w o u ld react to the totality of the evidence. Specifically , Stewart claims that the district court impermissibly discounted t h e declarations of Maurice L eag ue and Tatianna Daniels and failed to c o nsider the c umu lative effect of those declarations on the trial evidence. A ccording
to Stewart, L eag u e and Daniels’s declarati o n s u ndermined the testimony o f both Parish broth e rs with respect to identification of Stewart and the v ehicle u sed in the shooting

. Stewart also contends that Daniels’s declaratio n s u pported Stew a r t ’s c laim that J ackson was the driver of the vehicle. These arg uments are without merit.

W e r e view the distr i c t court’s decision for abuse o f discretion. 1 0 I n Schlup

, the Supreme Court assumed that to be the correct standard of review. See Schlup

, 513 U

. S. at 333–34 (O’Connor, J
., concurring ) (noting that the Court h ad “decided that the district court committed l e g al error, a nd thus abused its discretion,” and that “ t h e Court does not disturb the traditional discretion of di s t r i c t c ourts in this area,” while acknowledg ing that the C o u r t did not directly address the issue). W e s u b sequently relied on J u stice O’Connor’s concurrence a s setting the corre ct standard o f review. See Roe v. Anders on, 134 F. 3 d 1400, 1402 n .1 (9th Cir. 1998) (abuse of discretion review “has been subsequently adopted i n numerous other contex ts” including in Schlup

, citing J ustice O ’Connor’s concurrence). W e hav e d i rectly applied this standard when reviewing a d istrict court’s

10 W e d isag ree w ith t

h e d issen t’ s arg u m en t th at a d e n o vo rev iew o f th e

ev id en ce b ef

o re th e d istrict co u rt is ap p ro p riate. In ad d itio n , w e n o te th at Stew art h i m self in v o k ed t h e a b u se o f d iscretio n stan d ard o f rev iew

, arg u in g th at th e d istrict co u rt erred in its rev iew of th e f acts u n d er S

ch lu p

.S T E W A R T V

. C A T E 18

disposition of S

chlup claims. S

ee Paradis v. Arave
, 130 F .3d 385, 396–99 ( 9 t h C ir. 1997) ( holding that “[ a] s the district
court applied an e rroneous standard for the showing of actual innocence here, it abused its discretion”). The S u p r e m e C o u r t ’ s s u b sequent d ecisions on actual innocence claims h a v e been consistent with this standard of review. See, e.g. , House
, 547 U.S. at 539– 4 0 ( n o t ing that deference is g iven to a trial court’s assessme n t o f evidence presented to it in the first instance); McQuiggin
, 133 S. C t

. a t 1936 (noting that the district court’s assessment o f the actual innocence claim should be “dispositive, a b sent c au se”). Absent any clear
g uidance from either our en banc court or the Supreme Court
t h a t review o f the Schlup inquiry is, in fact, de novo , w e a r e bound to mai n t a i n the status quo and apply a n abuse o f discretion standard. 1 1

Twenty p ag es of the district court’s decision are devoted
t o an ex haustive review and analy sis of the trial evidence as well as the additional evidence proffered by Stewart. W ith respect to the Parish brothers’ identification o f Stewart, the district court described Mark Parish’ s t e stimony as follows: Mark testified that Stewart was d r iving the vehicle; shortly after the shooting

, Mark de s c r ibed the d river as b ald but at trial clarified tha t t h e shooter had his hair in a pony tail a nd

11 A p ply in g a de n o vo stan d ard o f rev iew w o u l d ef f ectiv ely req u ire th is Co u rt to rev iew th e en tire reco rd —an d an y ad d itio n al ev id en ce p resen ted b y t h e p etitio n er—in an y case in w h ich th e petitio n er articu lates a S ch l u p g atew ay claim in h is petitio n

. No t o n l y w o u l d th is p o ten tially p lace a h eav y b u rd en o n o u r circu it, bu t m o re im p ortan t ly

, ad o p tin g s u c h a ru le

w o u ld n o t co n f

o rm w ith o u r stan dard p ractice of rev iew in g d i s trict co u rts’ f actu al d eterm in atio n s in h ab eas cases f o r clear erro r. T h e cases cited b y th e d issen t in su

p p o rt o f th at p o sitio n

(p articu larly th e en b an c d ecisio n s in Lee
, S mith an d S i s t r u n k

) n eith er d iscu ss t

h e ap p licab le s tan d ard n or ap p ly a stan d ard ap p ro x im atin g d e n o vo rev iew

.S T E W A R T V

. C A T E 19

just appeared bald; Mark received a p hone call after the

s h o o ting from a caller who identified the driver; and Ma r k identified Stewart in a p h o t o lineup. The district court also summariz e d Michael Parish’s testimony

, stating that Michael identified Stewart as the driver and that Michael identif ied Stewart in a photo lineup. W ith r e s p e c t to the vehicle involved in the shooting

, the d istrict court noted that Mark Parish d e scribed a rust-colored B MW

. Mark further testified that he h ad previously d escribed the B MW as silver-g ray because of its unusual paint job

, w hich caused its colors to chang e in differing lig hts. Michae l ’ s testimony also described the vehicle as rust-colored. B oth b rothers selected the a ctual paint color of the B MW from paint samples shown
to them a t trial. The Parish brothers’ testimony was corroborated in part by their brother-in-law, Sy lvester W ade,

a police detective. The district court noted that shortly a fter the shooting both brothers had described the vehicle to Wade

a s a “lig ht silver-g r ay ish o r lig ht-blue B MW

. ” W ade prepared the photo line ups from which both brothers identified Stewart.

The district court considered the testimo n y of the Parish bro thers and other witnesses in conjunction w ith the additional evidence proffered by Stewart and analy z ed evidence that supported Stewart’s d efense. The district court accurately summariz e d the declarations of L eag ue a nd Daniels

. The district c ourt n oted that L eag ue stated in his declaration that Mark Parish told L eag u e that he was unsure who had shot him, and that th e p h o t o identification of L ee and Stewart was the result o f pressure. Daniels stated that she

was J ackson’s g irlfriend at the t i m e of the shooting and that J a c k s o n confessed to her that he was the driver of a reddish-brown Honda from which a nother individual, Arnold Adkins (now dead) shot the Parish b rothers. The dist rictS T E W A R T V

. C A T E 20

court acknowledg ed that some evidence sugge sted that the Parish brothers’ identification of S t e wart and L ee may have been influenced by “word on the street.” The district court also g a ve consideration to S t e w a rt ’s alibi and the possible evi d e n t i a r y c o n f u s i o n related to another g ang -related shooting
t h a t occurred hours after the Parish brothers were shot. Additional declarations provided by Stewart were considered by the district court; those declarations contradicted evidence introduced at trial that Stewar t h a d brag g ed about the

s h ooting and sug g ested that J ackson could h ave been t h e driver.

Ultimately

, the district court c o n c luded that Stewart h ad failed to p ass throug h the Schlup gateway for a number o f related r easons. The district cou r t found that J ackson’s confession, which had cast doubt on L ee’s convictions could weaken the Parish brothers’ identification of Stewart o nly b y implication; in fact, J ackson’s confession implicated Stewart while e x culpating L ee. The district court also noted that Stewart had a weak alibi: several w itn e s ses, including his mother, placed him and h is B MW ne a r t h e scene of the shooting

, and his alibi witnesses were impeached. Moreover, the evidence sug g esti n g p ossible confusion between the

s h o o ting o f the Parish brothers a n d another g ang -relat e d shooting on the same nig ht only called the Parish brothers’ identification of L ee into q uestion. Additio n a l e vidence related to the B MW implicated Stewart as well: the B MW that witnesses saw at the scene of the shooting was identical
to the B MW that S t e w a r t drove and possessed the same distinctive wheel rims; Stew a r t ’ s B MW h a d g u n powder residue on it, and Stewart w as found cleaning t h e c a r in the middle of th e n i gh t several hours after the shooting

. Althoug h the Parish broth e rs g ave conflicting statements reg arding the color of the BM W involved in the shooting

,S T E W A R T V

. C A T E 21

they correctly identified the color at trial using paint swatches and even the trial judg e n oted that the color was difficult to describe. Stewart had ample opp o r t u nity to, and did in fact challeng e or attempted to cast d oubt on all of this B MW

related evidence at trial; the jury simply found his effo r t s unpersuasive. F inally

, additional ey ewitness testim o n y also linked Stewart’s B MW to the scene. T he evidence alleg edly underm i n i ng Stewart’s “confession” ( i.e
., his boast to a witness about having “shot h is h o meboy ”) was of little sig nificance g iv e n that the “confession” was only an inference by a p rosecution w itness. 1 2 Other d eclarations offered by Stewart wer e similarly equivocal, as they did not specifically

ex culpate Stewart.

The district court’s a s s e ssment of the evidence was appropriately cumulative. See House
, 5 47 U.S. at 5 38; see also Lee
, 653 F .3d at 945. The district c ourt fairly assessed the trial evidence, n oting various deficiencies and c onflicts therein. The district court also thoro u gh l y discussed the additional evidence proffered by Stewa r t and its potential

ex c u lpatory

effect. The district court considered the L eag ue and Daniels declarations in lig ht of the other evidence before the court. L eag ue’s declaration was duplicative o f testimony offered at trial by Kenneth Anderson, who stated that Michael Parish told him he did n ot know if Stewart and L ee had shot him, and that h e was g etting p ressure from his parents a nd the

12 A t trial, p ro secu tio n w i tn ess K ev i n B ro w n testif ied th at h e s aw Stew art at h is f

o o tb all practice, w

h ere Stew art to ld h im “ I sh o t y ou r h o m eb o y .” B ro w

n assu m ed S tew art w as ref

errin g to o n e o f th e P arish b ro t h e r s. In h is f

ed eral p o st- co n v ictio n relief p ro ceed in g s , Stew art o f f ered

a s t atem en t f

ro m W illiam A llen

, a f

r i en d an d f

ello w g an g m em

b er, w h o

s t a t ed th at h e h ad n ev er seen Stew art at Bro w n ’ s f o o tb all p ractice. T h e d istrict co u rt co rrectl y c o n clu ded th at in f eren tial v alu e o f Bro w

n ’ s testim o n y an d th e im

p each m en t v alu e o f

A llen ’ s statem en t w ere m in o r.S T E W A R T V

. C A T E 22

police. Daniels’s statement that J ackson had c onfessed t o driving a reddish-brown Honda from which Arnold Adkins shot the Parish brothers was contradicted by the ey ewitness testimony describing a l i gh t-colored B MW at the scene, a s well as the testimony

of the Parish brothers. Ultimately

, the district court concluded that “considering all the e v idence, which includes the evidence presented a t and ex cluded from trial, as well as the District A ttorne y ’ s investig ation file a nd the post-conviction declarations o btained from Stewart, St e w a r t has failed to show that this is one of the ‘ex traordinary ’ cases where ‘a court cannot have confidence in t h e o u tcome of the trial.’” Althoug h the district court

s p ecifically rejected the probative v alue of the L eag ue a nd Daniels declarations, that does not prove that the district court failed to “ assess how reasonable jurors would react to the overall, newly supplemented record.” H ouse , 513 U.S. at 538. The district court addressed discrete ele ments of evidence because there is no way to a ddress all the evidentiary matters

ex c e pt one at a time. The d istrict cou r t r e co gniz ed the applicable law and sy

nthesiz ed the tri al e vidence with the additional proffered evidence. I ts cumulative analy sis complied with the Schlup standard. 1 3

1 3 Stew art arg u es th at th e d istrict co u rt’ s an aly sis w as in co n sisten t w i th Ho u se , bu t a b rief co m

p ariso n w ith th e f

ac t s o f Ho u se d em o n s trates th e t h i n n e ss o f S tew art’ s ev id en tiary sh o w in g in th is case. In Ho u se , t h e d e fen d an t’ s n ew f

o ren sic ev i d en ce serio u sly u n d erm in ed f o ren sic

ev id en ce p resen ted at trial th at w as cru cial to th e p ro secu tio n ’ s case. Oth er

n ew ev i d en ce created a stro n g , cred ib le co u n ter- n arrativ e ab o u t w h o m th e real p erp etrato r m ig h t h av e b een

. S ee 5 47 U.S. at 5 5 2

– 5 3. B y co n trast,

n o n e of th e ev id en ce S tew art o f f ers w o u ld h av e h ad s u c h a su b stan tial ef f ect in u n derm in in g t

h e p ro secu tio n ’ s case. Mo reo v er, th e Ho u se Co u rt

n o ted th at, “ co n sid ered in i so latio n ,” a reaso n ab le j u ry m ig h t w ell d isreg ard th e [n ew ] f

o ren s ic ev id en ce, o r th e ev id en ce im p licati n g a d if f eren t su s p ect.” S

ee id

. at 5 4 8
, 5 5 2– 5 3

. “ In co m

b in atio n , h o w ev er, w i th th e ch allen g es to th e [f

o ren sic] ev id en ce, a n d th e lack o f m o tiv e w i thS T E W A R T V

. C A T E 23

C. Request f

or Evidentiary Hearing.

Stewart requested an evidentiary hearing on his Amended § 2254 Petition, contending that Schlup requires a hea r i n g whe r e credibility o f witnesses is at issue. The district court d eclined the request. Stewart challeng es that decis i o n o n appeal, contending that the district court improper ly made credibility

determinations without an evidentiary hearing

. Schlup requires a petitioner “to support his alleg ations o f

c onstitutional error with new reliable evidence—w h e t h e r i t b e

ex c u lpa tory scientific evidence, trustworthy ey ewitness

a c counts, or critical phy sical evidence—that was n o t presented at trial.” 513 U .S. a t 324. The habeas court then “consider[ s] all the evidence, old and new, incriminating a nd

ex c u lpatory ,” admissible at trial or not. Lee
, 653 F .3d at 938 (citing House
, 547 U.S. at 538). On this complete r e cord, the
court makes a “probabilistic determination a b o u t what

r e a s onable, properly instructed jurors would do.” Id. (citations omitted). U nder the Schlup g at eway standard,

n ewly presented evidence may call into question t h e credibility of the w itnesses p res e n t e d at trial. See Schlup

, 513 U.S. at 330. I n

such a case, “the habeas court may have
to make some credibility as s e s s m ents.” Id

. No controlling leg al standard ex ists reg arding whether the credibility
assessment contemplated in Schlup requires an e videntiary

resp ect to [th e d ef

en d an t], th e ev id en ce p o in tin g to [a d if fe r e n t su sp ect]

w o u ld l ik ely rein f

o rce o th er do u

b ts as to [th e d ef

en dan t’ s] g u ilt.” Id

. at 5 5 2

– 5 3

. Stew art’ s ev id en ce, ev en “ in co m b in atio n ” d o es n o t ach iev e th is ef f ect.S T E W A R T V

. C A T E 24

hearing and if so, under what circumstances. 1 4 Generally , in this Circuit, “a habeas petition e r should receive an evidentiary hearing w hen he makes ‘a g ood-faith alleg at i o n that would, if true, e ntitle him to eq u i t a b l e tolling .’” Roy
, 465 F .3d at 969 (citing Laws v. Lamarque
, 351 F .3d 9 1 9, 919 (9th Cir. 2003)).

W e review the district court’s decision not to c onduct an

e v identiary hearing for a

buse of discretion. 1 5 Roy
, 465 F. 3 d
at 9 68. Given the streng th of the evidence before the district
court and the court’s method of e valuating that evidence, we conclude that the district court did not abuse its d iscretion in

14 T h e p arties d o n o t cite an y case law articu l a tin g a leg al stan d ard
reg ard in g w

h en an ev i d en t iary h earin g o n a g a t e w a y S ch lu p claim is
req u ired

. T h ere d o es n o t ap p ear to b e an y co n tro llin g la w o n th is i ssu e. T h e S ch lu p Co u rt su g g ested th at w h en co n sid erin g an actu al- i n n o cen ce claim in th e co n tex t o f a req u est f o r an ev id en tiary h earin g, th e d istrict

co u rt n eed n ot “ test th e n ew ev id en ce b y a stan d a r d a p p ro p riate f or d ecid in g a m otio n f

o r su m m ary j u d g m en t ,” b u t rath er m ay “ co n sid er h o w th e tim i n g o f t

h e su bm issio n an d th e lik ely cred i b ility o f th e af f ian ts bear

o n t h e p ro b ab le reliab ility of th at ev id en ce.” 5 1 3 U.S. at 3 3 1

– 3 2

. T h e Fo u rth Circu it h as lef

t op en th e p o ssib ility th at a S ch lu p cred ib ility d eterm in atio n co u ld b e m ad e based o n a co ld reco rd as o p p o sed to an

ev id en tiary h earin g

. S

ee Teleg u z v. Pea rso n , 6 8 9 F.3 d 3 2 2
, 3 3 1 (4 t h Cir. 2 0 1 2 ). Stew art in co rrectly cites Jo h n so n v. Fin n , 6 6 5 F.3 d 1 0 6 3 (9 th Cir. 2 0 1 1 ) in s u

p p o rt o f h is claim th at d u e p ro cess req u ires an ev i den tiary h earin g an y

tim e cred ib ility is at i ssu e. Jo hn so n is n o t o n p oin t, as it h o l d s th at a d istrict j u dg e m ay

n o t rej ect th e cred ib ility f

in d in g of a m ag istrate j u d g e in th e co n t ex t o f a su p p ressio n m o tio n o r a Ba tso n claim w ith o u t h o ld in g a n ew ev id en tiary h earin g

. Id

. at 1 0 6 6

. Neith er o f th o se scen ario s is ap p licab le to Stew art’ s case.

15 W e d isag ree w ith th e dissen t’ s o p i n io n th at th e d i strict co u rt ab u s es its d iscretio n w

h en its f ailu re to h o ld an e vi d e n t i ary h earin g p rev en t s th e

a p p ellate co u rt f

ro m en g ag in g in an ap p ro p riate d e n o vo rev iew o f t h e

reco rd

, Dis. O p

. at 3 9
, b ecau se w e d isag ree Stew art’ s S ch lu p claim sh ou ld b e rev iew ed d

e n o vo

.S T E W A R T V

. C A T E 25

d e ny ing Stewart’s request f or an evidentiary hearing

. Th e district cou r t correctly noted that newly -presented evidence
g iving rise to a Schlup g ateway innocence claim may require

a credibility assessment. T h e district court therefore assumed that Stewart’s newly -presented evidence was c redible a n d thoroug hly evaluated h i s a ctual innocence claim in lig ht o f the newly -presented evidence. T he court ultimately concluded, however, that the new evidence did not adequately support Stewart’s actual innocence claim. The district court noted that Stewart’s newly -presented e vidence could, at b est, challeng e the credibility o f the Parish brothers’ testimony

, but that even if the Parish brothers’ testimon y w e re discredited, sufficient direct a n d circumstantial evidence independent o f their testimony placed Stewart and his car at the scene of the shooting

. The district court ex p lained: “even assumin g t h e declarations now provided b y Stewart (including the L ee declaration) are credible, and a ssuming the Parish brothe rs’ identification of Stewart is n ot credible, the evidence presented by Stewart has n ot caused the Court t o ‘lose confidence in the outcome of the trial.’ Schlu p , 513 U.S. at 316. According ly

, an e videntiary hearing is not necessary to resolve Stewart’s Schlup claim.” Th u s , t he district court concluded that even i f i t fully credited Stewart’s new evidence (which would be the best result Stewart could

a c h i ev e at an evidentiary hearing ), Stewart would not be entitled to the r elief requested. The district court was entitled
to deny Stewart’s r equest for a n e v identiary hearing under these circumstances. See Lee
, 653 F .3d at 945 (“ a ssuming
arg uendo” t h a t new evidence was reliable and rejecting Schlup g ateway

claim).

Stewart takes issue with the district court’s conclusion
t h at the newly -discovered evidence, even if fully credited,

w o u l d not cause a reviewing court to lose confidence in t h eS T E W A R T V

. C A T E 26

outcome of the trial. Specifically

, S tewart claims that if deemed credible, the declarations he submitted a fter trial would establish that: (1) Darnell J a c kson confessed to being the driver in the Parish brother shooting ; (2) J ackson d rove a rust-colored H onda similar to the vehicle described b y t h e Parish brothers; and ( 3) Mark Parish was not sure wh o shot him and his ident i f

i c a t ion was the result of pressure. According to Stewart, th e s e three finding s would raise

r easonable doubt in the mind of a juror. This ar g u m e n t i s without merit for the reasons stated a b ove. The f

i rst two “new f acts” listed by Stewart are supported solely by the declaration of Tatiana D aniels. Daniels states that J ackson admitted tha t h e was driving a r eddish-brown H onda from which Adkins shot the Pa r i sh brothers. 1 6 This alleg ed
statement by J ackso n i s at odds with J ackson’s earlier
statement - which prompted L e e’s conviction to be vacated

- that Stewart drove the vehicle f rom w h i ch Adkins shot the Parish brothers. I t is also contrad i c t e d by ey e-witness testimony describing a lig ht-colored B MW drive away from the scene as w ell as subsequent in-court identification by the Parish brothers of t h e B MW paint color they described alternately as “rust” and “lig h t g rey

. ” M aurice L eag ue’s declaration that Mark Parish told him h e w a s not sure w ho shot h im a

nd that the identification was the result of p ressure

was duplicative of evidence prese n t e d at trial throug h the testimony of Kenneth Anderson. The district court had ample support for its conclusion that Stewart’s newly -discovered evidence did not tip the Schlup determination in his favor.

16 In h is d eclaratio n , Ro y Vin s o n s tated th at J a c k so n p o ssessed a .3 5 7 calib er rev o l v er w

h ich J ack so n said h ad b een u sed in “ a sh o o tin g .” T h is d eclaratio n d o es n o t d i rectly lin k J ack so n to th e sh o o tin g o f t h e P arish b ro th ers.S T E W A R T V

. C A T E 27

IV. CONCLUSION

B a sed o n the fore go i n g , we conclude that Stewart is not entitled to statutory tolling and that he did not make a

s howing o f actual innocence sufficient to pass through t h e S c h l u p g ateway

. The district court properly reached its d e c ision without an evidentiary hearing

. B ecause th e Amended § 2254 Petition is time-b ar r e d, we n eed not consider the district court’s conclusion that the Petition failed
to state a federal claim. The judg ment of the district court is therefore AF F IRMED. 1 7

B ERZ ON, Circuit J udg e , dissenting :

I respectfully dissent. I would reverse the district court’s dismissal of Stewart’s habeas petition.

I n my view, Stewart was entitled to statutory tolling of the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”)
one-y ear limitations p eriod during the 100-day interval between his successive state habeas petitions. Alternatively

, I would remand w ith instruc t i ons to hold an evidentiary hearing on Stewart’s claim f or an e quitable ex ception to AEDPA’s filing deadline under S chlup v. Delo

, 513 U.S. 298 (199 5 )

, a n d McQuiggin v. Perkins

, 133 S. Ct. 1 924 (2013). Stewart h as presented post-conviction evidence t hat, if credible, demonstrates this case to be the sort of ex traordinary

one that, under Schlup and McQuiggin
, requires reaching the

1 7 IT IS FURTH ER O RDERED TH AT Stew art’ s Mo tio n to Su p p lem en t an d req u e s t fo r j u d icial n otice f i led o n Decem

b er 2 3
, 2 0 1 0 (Dk t. No . 1 3 ) is DENIED AS M O O T.S T E W A R T V

. C A T E 28

merits of his otherw i s e b a rred federal habeas claims. I n holding otherwise, the majority applies the wrong standard o f review and seriously

misapprehends the record.

I

.

A.

AEDPA’s one-y ear limitations p eriod is tolled for “[ t] he time during which a properly filed application for State postconviction or o t h er c ollateral review

. . . is pending

. ” 28 U

. S

. C

. § 2244(d)(2). A petition is “pending ” during the i n t erval b etween a lower state court’s a dverse d ecision a nd the filing of an appeal only when the appeal is timely

. Evans

v. Chavis

, 546 U.S. 18 9
, 1 9 1 (2006). Under California’s unusual c ollat e r al review sy stem, petitioners are required to file successive petitions for habeas corp u s t o each hig her
court in turn, each successive petition s e r ving a s the equivalent to a notice of a ppeal. S e e W a l ker v. Martin
, 131 S. Ct. 1120, 1125–26 ( 2011) (describin g California’s
sy stem of post-conviction review). This “ e q u ivalent of a notice of appeal is timely if filed within a ‘reasonable time.’” Chavis

, 546 U.S. at 192 (quoting In re Harris
, 5 Cal. 4th 813, 828 n .7 (1993)). Under this indeterminate sy stem, there is no firm upper limit on the leng th of time that California courts consider reasonable f

o r interval tolling between successive habeas petitions.

Chavis permitted i n t erval tolling under California’s
sy stem of col l a teral r e v iew on the assumption “that California’s ‘reasonable time’ standard would not l ea d to filing d elay s substantially longer than th ose in States with determinate timeliness r

u l e s.” I d. at 199–200 (emphasis added) ( citing Carey v

. Saffol d

, 536 U.S. 214, 222–23S T E W A R T V

. C A T E 29

(2002)); accord Velasquez v

. Kirkland

, 63 9 F. 3 d 964, 967 (9th Cir. 2011). T he Court looked to the “30 to 60 day s[ ] that most States provide for filing an appeal to the state supreme court” as a point of co m p a r i son for assessing whether the interval b etween the filing of successive state habeas p e titions conforms to California’s “reason a b l e time” requirement. Chavis , 546 U.S. at 201.

B u t Chavis did not hold that a delay long er than 60 day s could never be reasonable. I t h e l d unreasonable o nly the

unex p lained six -month delay b efore the Court. Absent justification, that six -month interval was “far long er than the ‘short period[ s] of time’ that most States provide for filing an appeal to the state supreme court.” Id. (alteration in orig inal). 1

W h ether California courts would c o n s i der a g iven filing delay r e asonable is inherently a f a ct

- a n d circumstancespecific question; the shortest period deemed “unreasonable” under California law in one case does n o t necessarily mark

1 Sin ce Ch a vis , “ Calif

o rn ia law h as n o t clarif

ied w h eth er a f ilin g d elay
g reater th an 6 0 d ay s n ecessa rily q u alif i es as ‘s u b stan tial.’ ” Ch a ffer v. Pro sp er , 5 42 F.3 d 6 6 2
, 6 6 6 (9 th Cir. 2 0 0 8 ) ( “ C h a f f er I ”) (em p h asis

a d d ed ). T h e Su

p rem e Co u rt o f Calif

o rn ia d en ied o u r req u est f o r

cer t i fi c a t i o n o f t

h at q u estio n in C

h a ffer I
, an d h as n o t an sw ered it sin ce. S ee Ch a f f e r v. Pro sp er , 5 9 2 F.3 d 1 04 6
, 1 04 8 n .1 (9 th Cir. 2 0 1 0 ) (p er

cu riam ) (“ C

h affer II ”) (“ Calif o rn ia h as n o t p ro v id ed an y g u id an ce as to

w h at co n s titu tes a tim ely n o n

- cap ital h ab eas p etitio n .”); acco rd V e l a s q u ez , 6 3 9 F.3 d at 9 6 7

. We h av e ch aracterized “ C alif o rn ia’ s reaso n ab len ess stan d ard [as] co mmen su ra te with th e lim itatio n s o f o th er states, w h i ch are 3 0 o r 4 5 d ay s.” Cro ss v. Sisto
, 6 7 6 F.3 d 1 1 7 2
, 1 17 6
, 1 1 7 9 (9 th Cir. 20 1 2) (em p h asis ad d ed ) (citin g C

a rey , 5 36 U.S. at 2 2 2 )

. B u t n eith er th e Su p rem e Co u

rt o f th e Un ited States n o r Calif o rn ia’ s h ig h co u rt h a s held th at Calif o rn ia’ s i n d eterm in ate “ reaso n ab le tim e” p erio d is u n if orm ly

co exten sive w ith

o th er states’ lim itatio n s.S T E W A R T V

. C A T E 30

the long e st delay permissible in another. According ly

, while

w e have held that multiple unex plained delay s of 80 to 1 1 5 d ay s between successive petitions are “unreasonable” un d e r California law, see Velasque z , 639 F .3d at 968; Chaffer II
, 592 F .3d at 1048, that does not mean that the single period o f 100 day s at issue in Stewart’s case could not be rea s o n a b l e , in lig ht of his circumstances. I n particular, the p et i t i o ner in Velasque z was “represented by c ounsel at all stag es.” 639 F .3d at 968. Stewart, in contrast, filed his petition to the California Supreme Court pro se.

I n a r ec ent case, we left open the p ossibility that a fourand-a-half-month delay may be reasonable under California l a w

. W e remanded to the district court to determine in t h e first instance whether the p risoner’s petit i on was timely

, noting that the interval “may b e within the rang e o f reasonableness if [ the petitioner’s] ex planation for the delay is adequate under California law.” Noble v. Adams

, 676 F .3d 1180, 1184 (9th Cir. 2 012). Noble emphasi z e d t h at “the California Court of Appeal has ex cused del a y s of several months where the p etitioner offered an a dequate ex planation for the delay ,” particularly in pro se cases. I d

. ( c iting I

n re Burdan

, 169 Cal. App. 4 th 18, 3 0–31 (2008) (ex cusing a delay of ten months for a pro se p e t itioner whose attorney said he would handle the appeal but d id not d o so); In re Crockett

, 159 Cal. App. 4th 751, 757–58 (2008) (ex cusing a delay of approx imately

five months where the attorney “had

no prior ex perience w ith appellate writs and c ould not obtain the assistance of ex perienced appellate counsel”)).

The majority ’s attempt to cabin the hol d i ng of In re Burdan

, one of the cases c i t e d in Noble

, to the contex t o f petitions challeng ing parole decisions is unconvincing

. To be
sure, In re B urdan ex plained that the rationale for requiringS T E W A R T V

. C A T E 31

prompt filing of h ab eas p etitions challeng ing convictions in the capital c ontex t does not apply “ where a life prisoner challeng es a parole decision.” 169 Cal. App. 4th at 31. B ut the court went on to state in a separ a t e parag raph, “[ a] t any rate”—in o thers words, the policy considerations underly ing the timeliness rules aside—“[ w] e do not find a delay o f 1 0 months for an unrepresented prison inmate to fi le a petition for w rit of habeas corpus in the Court of Appeal, after denial of a similar petition in the superior c o urt, to be unreasonable.” Id.

I n addition to the c ases cited in Noble

, several oth e r California cases h ave permitted the filing of a habeas petition

more than 10 0 d a

y s a f ter a lower court’s denial of the preceding petition. See In re B ower , 38 Cal. 3d 8 65, 8 73 n.3 (1985); In re Moss
, 175 Cal. App. 3d 9 13, 921–22 (1985); I n

re S pears , 157 Cal. App. 3d 1203, 1 208 (1984). The majority finds none of these cases persuasive, but o nly because it reads them selectively

.

F or ex ample, the majority dismisses the relevance of In re Spears and I

n re Moss on the g round that t h e y p redate the California Supreme Court’s ex press use of the “reasonable time” lang uag e from In re Harris
, 5 Cal. 4th at 8 28 n.7, a nd therefore contain no dis cu ssion of the operative timeliness standard. See Maj. Op. at 13–14 & n.9. B ut t h e m a jority overlooks the content of the California courts ’ holding s: Spears u nequivocally states that “18 months is not a sig nificant delay .” 157 Cal. A p p

. 3 d at 1208 (citing In re Hancock

, 67 Cal. A p p

. 3d 943, 9 45 n.1 (1972)). And Moss held that, g iven the petitioner’s inability to secure appellate

cou n s e l, “a delay of nine months

. . . is not a sig nificant delay .” 175 Cal. App. 3d at 922.S T E W A R T V

. C A T E 32

The majority ’s dismissal of I n re Bower as insufficiently reasoned is equally unconvincing

. S e e Maj. O p. a t 14. Rather, the cursory character o f B o w er ’s a naly sis indicates that the Sup r eme Court of California c onsidered it
unnecessary to ex pound o n why a delay of less than one y e ar i s n ot “undue.” See 38 Cal. 3d at 873 n.3. Presuma b l y , a considerably shorter delay

, 100 day s, would r equire even less

ex p lanation.

I n short, a sing le 100-day delay between the Califor n ia Court of A ppeal’s denial o f St e w a r t ’ s petition on May 23, 2003 and the filing of h i s subsequent pro se petition in the California Supreme Court on Aug ust 31, 2013 was not necessarily

unreasonable under California law.

B

.
Moreover, unlike the petitioner in Velasquez

, 6 39 F .3d at 968, and like the petitioners in Spear s , Moss
, Bower
, a

nd Burdan

, Stewart offered an ex planation for the delay

, one that California courts would likely find adequate. I n his petition
to the Supreme Court of California, S t e wart wrote: “Due to [ sic] state of emerg ency status declared J u n e 2 3
, 2003 at Salinas Valley State Prison, a nd the transferring of p etitioner
out o f Salinas Valley

State Prison to Calipatria State Prison, the writ is broug ht in a timely p eriod.” The district court did
not acknowledg e this ex planation, let alone assess its ad eq u a c y under California law. The majority

, in turn, dismisses the state of emerg e n c y and p rison transfer as an “implausible” ex cuse for the filing delay , on the g round that

no research was required in the preparation of the petition to the California Supreme C o u r t because it presented no new evidence or claims. See Maj. Op. at 15.S T E W A R T V

. C A T E 33

The need for o n g oing investig ation or research is but “one

ex a mple of go o d cause,” not the o nly potential justification for delay during prison lockdowns and transfers. In re Robbins

, 1 8 Cal. 4th 770, 805 ( 1998). There are o ther impediments that a prison’s e merg ency status may pose to the timely filing of a prisoner’s p ro se petition. W hile Stewart’s opening brief on appeal mentioned h is inability to “research his petition” due to “a lock-down” and “subsequent transfer,” it also cited, more g enerally

, “limited access to resources d ue to the prison emerg ency and subsequent transfer.” The mechanics of re-drafting and f i ling a petition, including obtaining the papers previously filed, copy ing them b y accessing means of duplication, procuring suitable packag ing material for the documents, and determining the location o f the appropriate court, can all be o nerous for a pro se prisoner, lacking both leg al training and resources. Stewart’s assertions permit an inference that the restrict i o n s on his
movements i m p osed during the state of emerg ency a nd chang es in his custodial conditions made it difficult f o r h i m to accomplish such tasks. Thus, while the fact that the c laims and sup p o r t ing evidence presented in successive h abeas petitions are nearly identical undercuts ex cusing a lawy er’s delay in f iling a petition, see Velasquez

, 639 F .3d at 968, the multiple difficulties prisoners encounter while in lockdown and during transfers are indeed pertinent to ex cusing delay

, even where the successive petitions are similar or identical.

F inally

, that Stewart’s “ex p l a n a tion” appeared in the “Supporting Fa c t s ” section of his pro se petition to the California Supreme Court rather than the desig nated portion of the form, see Maj. Op. at 15, has no bearing on whether it
may adequately justify the delay

. I h ave found no indication—and the majority cites non e—that California
courts would consider such a technical factor dispositive a ndS T E W A R T V

. C A T E 34

so refuse to consider an ex planation t hat does p r ovide g ood cause for delay

.

I c o n c l ude that, in lig ht of the ex planation Stewart offered, California cour t s would not consider the 100-day period between the state Court of Appeal disposition and the filing of Stewart’s habeas petition in the California Supreme Court u nreasonab l e

. I would therefore reverse the district court’s dismissal of Stewart’s petition as untimely

.

I I

.

Even if Stewart is n ot entitled to statutory tolling and his federal p e t ition would therefore be time-barred under AEDPA, he may be en t itled to an equitable ex ception to § 2 2 44(d)(1). I n my view, h e has presented evidence o f actual innocence that, if credible, is sufficient to pass throug h the Schlup g ateway

. See Perkins

, 133 S. Ct. at 1931; Larsen

v. Soto
, — F. 3 d

— , No. 10-56118, 2013 W L 5066813, at *9–10 (9th Cir. Sept. 16, 2013); Lee v

. L a m p e r t , 653 F .3d 929, 934 ( 9th Cir. 2011) (en banc). Reviewin g S tewart’s Schlup showing de novo , and i n l i ght of all available evidence, I would hold that an eviden t i ary hearing is
necessary to determine whether he has shown that it is more likely than not that no reasonable juror would have convicted him o n the s u p p l e mented record, and thus that he is entitled
to have his “otherwise time-barred c laims heard on the merits.” Lee
, 653 F .3d at 932, 937. I would therefore reverse and remand for the district court to hold a Schlup hearing

.S T E W A R T V

. C A T E 35

A.

The majority reviews the d istrict court’s d e cision for abuse of discretion. T h a t is not the correct standard o f review.

As the majority acknowledg es, Maj. Op. a t 8, we g enerally r eview the denial of a § 2254 petition de n ovo , whether that d enial turns on procedural g rounds or on the merits of t h e p e t i tion. See Stancle v. Clay

, 692 F .3d 948, 952–53 (9th Cir. 2012) ( review ing de novo the denial of a petition o n timeliness g r ounds); W aldron-Ramsey v

. Pacholke

, 556 F .3d 1008, 1011 (9th Cir. 2009) (reviewing de

n o vo whether the statute of limitations should be equitab l y tolled). The same standard a pplies to the district court’s determination that a petitioner h as failed to meet S c h lup ’s actual innocence standard. Neither precedent nor p olicy supports the majority ’s contrary conclusion. 2

i.

Precedent confirms the propriety of de novo review. Most notably

, r ecent en banc decisions have evaluated Schlup claims by independently and ex haustively reviewing the

s u p p l emented records that such cases present. I n Lee v

. Lampert
, f

or ex ample, an en banc pan e l of this Court

2 No r h as Stew art in v o k ed th e ab u se- of

- d i scretio n stan d ard

, as t h e

m aj o rity su g g ests. Maj

. Op

. at 1 8 n .1 1

. T o t h e co n trary , Stew art o b serv es th at th is Co u rt “ rev iew s d e n ovo th e d istrict co u rt’ s d ism issal o f a § 2 2 5 4
p etitio n o n t i m e lin ess g ro u n d s.” T h e m aj o rity co n ten ds t h at Stew art d ep arts f ro m th is stan d ard o f rev iew b y arg u in g th at “ th e d istrict co u rt

m i sap p lied S

ch lu p .” P o in tin g o u t th e d istrict co u rt’ s erro r d o e s n o t

am o u n t to im p licit in v o catio n o f a s tan d ard o f rev iew th at Stew art d o es n o t

so m u ch as n am e.S T E W A R T V

. C A T E 36

intensively c anvasse d the supplemented record to make its

own “probabi l istic d etermination about what reasonable,
p r operly instructed jurors would d o” if faced with the n e w evidence, as the Schlup standard demands. 653 F .3d at 9 3 8 (internal quotation marks omitted); see also Smith v. B a ldwin

, 510 F .3d 1127, 1139–46 (9th Cir. 2007) (en banc) (canvassing the supplemented record ex haustively to assess

a Schlup c laim). I n Sistrunk v. A rmenakis

, to name another

ex a mple, “[ t] he sole issue o n appeal” was a Schlup claim, y et the en banc court still observed t hat the denial of a h abeas petition was properly reviewed de novo

. 292 F. 3 d 6 69, 672–77 (9th Cir. 2002) (en banc). Three-judg e panels of this Court h ave conducted similarly comprehensive a nd independent reviews o f the supplemented records petitioners have presented to them. S ee, e.g. , Gandarela v. Johnson

, 286 F

. 3d 1080, 1085–87 (9th C ir. 2001); W ood v. Hall

, 130 F .3d 373, 379 (9th Cir. 1997). Most recentl y , a t hreejudg e panel of this Court o bserved that satisfaction o f “the Schlup standard is a leg al question that we review de novo.” Larsen
, 2 013 W L 5066813, at * 6 n.6. Althoug h none of these

cases ex plained why they conducted d e novo r eview of Schlup claims, that is ex actly what they d i d

. And the circuits that have c onfronted the issue e x pr e s sly h a v e all concluded that de novo review of Schlup claims is a ppropriate. Munchinski

v. W ilson

, 694 F .3d 308, 337 (3d Cir. 2 012); United States ex rel. B e l l v

. Pierson
, 2 67 F .3d 544, 552 (7th Cir. 2 001); Beeman v. Iowa
, 108 F .3d 181, 184 (8th Cir. 19 9 7 ); O ’ D ell

v. Netherland

, 95 F .3d 1214, 1 2 50 (4th Cir. 1996) (en banc), aff’d

, 521 U.S. 151 (1997).

True, as the majo r ity points out, Paradis v. Arave reversed the denial o f a habeas p etition alleg ing actual in nocence u nder Schlup on the g round that, because “the district court a

pplied an errone o u s [ leg al] standard for theS T E W A R T V

. C A T E 37

showing of actual innocence h ere, it a bused its discretion.” 130 F .3 d 3 8 5
, 396 ( 9th Cir. 1997). B ut that decision preceded the en banc cases I have c ited. See Ortega-Mendez

v. Gonzales

, 450 F .3d 1010, 1019 ( 9th Cir. 2006) (ex plaining that three-judg e panels are not bound by the decision o f a p r i or three-judg e panel when it is irreconcilable with a subsequent e n banc decisio n ). F u rther, Paradis mentioned the standard of review in p a s s i n g, and had no occasion to consider whether a more string ent standard was appropriate,

as the district court’s decision flunk ed even the most deferential review.

T h e m ajority ’s remaining appeals to precedent fare no better. J ustice O ’C o nnor’s concurrence in Schlup by no

means “assumed that

. . . the correct standard of review” was for abuse of d iscretion, as t h e majority insists. Maj. Op. at 17. Rather, as J ustice O’Connor ex plaine d

, Schlup did not “speak to the standard of appellate review.” 513 U.S. at 334. I t did n ot need to do so because the under ly ing decision in that case was based “on an e rroneous v i ew o f the law,” a nd thus failed even under deferential review. Id. at 333.

Nor did this Court subsequently rely on that concurrence “as setting the cor re c t s t an dard of r eview.” Maj. Op. at 17. To the contrary , R oe v. Anderson —which affirmed the g rant of preliminary injunctive relief i n a c a se under 42 U .S.C. § 1983—referred to O’Connor’s concurrence in a leng thy string citation supporting the proposition that the a b use-ofdiscretion standard, where it applies

, does not e ntail de novo review of leg al c onclusions. 1 3 4 F

. 3 d 1400, 1402 n.1 (9th Cir. 1998). Roe had no reason to consider whether abuse-ofdiscretion review applies to Schlup claims in habeas and did not do so.S T E W A R T V

. C A T E 38

Nor do the two subsequent Supreme Court cases cited b y the majority support the majority ’s conclusion. House v. Bell observed that “ [ d] eference is g iven to a trial court’s
assessment o f evidence presented to it in the first instance.” 5 4 7 U.S. 518, 539 (2006). B ut House then ex plained t h at “the Schlup inquiry

. . . requires a holistic judg ment about ‘all the evidence,’” an i nquiry which “does not turn on discrete finding s reg arding disputed points of fact, and ‘[ i] t is not the district court’s independent judg ment as to whether reasonable doubt ex ists that the standard addresses.’” Id. at 53 9

– 4 0 (quoting Schlup

, 5 13 U.S. at 328, 329) ( emphases added). Here—unlike in House —there h a s b een no evidentiary hearing

, a

nd the trial court purported to accept all the evidence “ presented to it in the first instance” as c redible. There was therefore no occasion to make factual finding s as to that e vidence in isolation. House thus supports, rather than detracts from, the conclusion that t h e application of the Schlup standard on the entire record is one a s t o w h ich the district court neither finds facts nor ex ercises discretion, a nd as to which de novo review is therefore appropriate.

The other Supreme Court case cit ed, McQuiggin v

. P erkins

, noted, in passing

, that on remand “the Dis t r i ct Court’s a ppraisal of Perkins’ petition as insufficient to meet Schlup ’s actual-innocence standard should be d ispositive, absent cause

. . . .” 133 S. Ct. at 1936 (emphasis added). This lang uag e does not describe any of the usual standards o f review—e.g

. , de novo , clear erro r , abuse of discretion. “Absent cause” thus c ould simply mean “unless incorrect”; it certainly does not mean “abuse of discretion.”

I n short, my c olleag ues read the relevant preceden t s incorrectly

. The applicable case law, far from compellingS T E W A R T V

. C A T E 39

a b u se-of-discretion review, supports de n ovo consideration o f the Schlup claim on the present record.

ii.

The ma j o r ity ’s innovation is as unwise as it is unprecedented. Sel ecting an appropriate standard of r eview often r e q u ires assessing whether “one judicial actor

. . . [ is] better positioned than another to d ecide the issue in question.” Cooter & Gell v. Hartmarx Corp.
, 496 U .S. 384, 403 (1990) (internal quotation marks o mitted). De novo r e v iew is

e specially appropriate where, as h ere, relief turns o n

a pplication o f “‘fluid concepts that take their substantive

c o n tent from the particular c ontex ts in which the standar d s

are being assessed.’” Cooper Indus., Inc. v. Leatherman Tool Grp., I nc. , 532 U.S. 424, 436 ( 2 0 01) (quoting Ornelas v

. United States
, 517 U.S. 6 90, 696 ( 1 9 96)); accord HarteHanks Commc’ns, Inc. v

. Connaughton

, 491 U.S. 657, 686 (1989). Allocating authority over such concepts to appellate
courts wit h supervisory power facilitates the u niform development of the law a

nd enhances p redictability

. Cooper I ndus.

, 532 U.S. a t 4 36; O rnelas

, 517 U.S. at 69 7 ; S a l v e Regina College v. Russell

, 499 U.S. 2 2 5
, 2 3 1 (1991). Such coherence a

nd uniformity are especially necessary where “the stakes—in terms of impact o n f u ture cases and future conduct—are too g reat to entrust them finally to the judg ment of the t r i e r o f fact.” Bose Corp. v. Consumers Union of the United States, Inc. , 466 U.S. 485, 501 n.17 (1984).

All these concerns a

pply here. The Schlup standard is, in its very nature, “fluid

. ” M uch like probable cause o r reasonable suspicion, whic h t h e Court has c haracteriz e d a s “fluid concepts” subject to de novo review, Ornelas

, 5 17 U.S.
at 696, th e S

chlup standard describes a probabilistic inquiryS T E W A R T V

. C A T E 40

that em phasiz es differences of deg ree rather than kind. Retaining appellate control over that standard is e ssential for two, interrelated reasons. F irst, the inte r e s t Schlup
pr o t e cts—avoiding conviction of an actually innocent person—reflects a c oncern that “ has long been a t the core o f

our criminal justice sy stem.” 5 13 U.S. at 325. Sec o n d

, a nd conversely

, appellate cour t s must g uard a g ainst e x cessive application of the Schlup s t andard, “[ t] o ensure that the fundamental miscarriag e of justice ex c e p t ion

. . . remain[ s] ‘rare’ and [is] only applied in the ‘ex traordin a r y case.’” Id.
at 321, 324. Preserving the narrow scope of such a vag ue but important standard thus requires substantial appella t e oversig ht.

B y contrast, n one of the u sual justifications for deference apply here. “W hen, for ex ample, the issue involves the credibility of witnesses and therefore tu r n s larg ely on an evaluation of demeanor, there are com p elling a nd familiar j ustifications for leaving the process of apply ing law to fact
to the trial court and according its determinations presumptive weig ht.” Miller

, 474 U

. S

. at 114. At the preevidentiary hearing stag e, this consideratio n has no application whatever (and only a limited application after an evidentiary hearing

, as House ex p lains, 5 97 U.S. at 539–40).

Similarly

, “it is ‘especially common’ for issues involving supervision of litiga t i on to be reviewed for abuse o f discretion.” Salve Regina
, 499 U.S. at 233 ( quoting Pierce v

. Underwood

, 4 87 U.S. 5 52, 558 n.1 (1988)). This d e ference
recog niz es the trial judg e’s traditional control o v e r the conduct o f a trial and his need for “ b r oad power to cope with the complex ities and conting encies inherent in the adversary
p r o c ess.” Geders v. United States
, 425 U.S. 80, 8 6 (1976). The S chlup standard, however, c oncerns matters neverS T E W A R T V

. C A T E 41

presented at trial, and thus does not t r e s p a s s on the trial judg e’s trad itional bailiwick. I ndeed, a court e valuating a Schlup c laim is not “bound by the rules of admissibility that would g overn at trial” and may include in its a sse s s m ent evidence that “ was e ither ex cluded or unavailable at trial.” Schlup

, 513 U.S. at 327–28; acco r d L e e , 653 F

. 3d at 938 (quoting House , 547 U.S. at 538)).

Ultimately

, then, pertinent policy c onsiderations c ompel the conclusion that precedent supports: This Co u r t should review Schlup claims de novo , not for abuse of discretion.

iii.

Analog y to parallel b o d ies of law further confirms this conclusion. Consider, for e x ample, review of claims o f insufficient evidence under Jackson v. Virginia
, 443 U .S. 307 (1979). The Schlup standard is stru cturally similar to— althoug h it is substantively distinct from—the J a c k son standard. W hereas J

ackson asks whether a r a tional trier o f fact co u l d convict on the record evidence, Schlup a sks whether a reasonable trier of fact would more likely than not convict on a supplemented r ecord. S e e Schlup

, 513 U.S. at 330; Lee , 653 F .3d at 938 n.13.

I f any thing

, Schlup claims are more a menable to de novo review than Jackson claims: Ja c k s o n entails assessment o f the trier o f fact’s actual finding s, usually after the presentation of live testimony

, and thus treads more heav ily

on the factfinder’s traditio n a l p rerog a tives. See Schlup

, 513 U. S

. a t 330. B y contrast, the Schlup standard “focuses the inquiry

on the likely

behavior of the trier of f

act,” before the trier of fact has had any opportunity to consider evidence contained in the supplemented record. Id. Nevertheless, thisS T E W A R T V

. C A T E 42

C ourt reviews de novo a d istrict c o urt’s assessment of th e evidence under Jackson

. See, e.g. , United States v

. Garrido

, 713 F .3d 985, 999 (9th Cir. 201 3 )

. A fortiori

, it oug ht to review Schlup claims under the same standard.

Harmles s e rror determinations offer a second useful analog y

. Harmless e r r o r standards vary widely by doctrinal
contex t. See, e.g. , Brecht v. Abrahamson

, 507 U.S. 619, 637 (1993); Strickland v. W

ashington

, 466 U.S. 668, 694 ( 1 984); Chapman v. California

, 386 U.S. 18, 24 (1967). Despite this variety

, harmless error analy sis, much like t h e Schlup standard, always concerns a hy pothetical question—whether
t he trier of fact would h ave arrived at a different con cl u s i o n but for the e rror. B y n o means does such counterfactual analy sis require appe l l a t e courts to act as “a second jury to determine whether the defendant is g uilty .” Neder v. United States
, 527 U.S. 1, 19 (1999) (i n t e r n a l quotation marks omitted). I nstead, the court reviews the e ntirety of the record

“‘ in typical appellate-court fashion ’” to predict the outcome absent the error. United States v. Rodrig u e s , 678 F .3d 693, 696 (9th Cir. 2012) (emphasis a dded) (quoting Neder

, 527 U .S. at 19). Such review is de n o v o

. I d

. So, too, here: Schlup poses a hy

pothetical q

uestion a nswered by survey

ing the r ecord, and we app r o p r i a tely review the district court’s counterfactual conclusion d e novo

.

iv.

F inally

, neither the leng thiness nor the commendable

ex h austiveness o f t h e district court’s discussion of the eviden c e c a n a lter the de novo nature of our review. To be
sure, the district court’s thoroug h analy sis o f the record
g reatly eases our w ork, by blaz ing a t r a il throug h the evidenc e an d pointing to the factual intersections mostS T E W A R T V

. C A T E 43

important to our u ltimate inquiry

. I t re m a i n s o ur task, however, to p r edict from the supplemented record in its entirety

, not what actually hap p e n e d

, but what a reasonable and properly instructed jury would have concluded, h ad it been faced w ith the new e vidence a s well as that presented at trial. 3

As to the district cou r t ’ s decision not to hold an evidentiary h earing before ruling o n Stewart’s Schlup c laim, that ruling

, as the majority correctly notes, is r eviewe d f o r abuse of discretion. S

ee Smith

, 5 10 F .3d at 1137. B ut if we

are unable, without an e v identiary hearing

, to determine the “likely impact” of the petitioner’s n ew evidence of innocence “on reasonable ju r o rs,” Lee
, 653 F .3d at 945, as Schlup requires, then the district court’s denial of Stewart’s r eq uest for such a hearing constitutes an abuse of discretion. I n other words, if our probabilistic d etermination as to whether jurors would convict Stewart necessarily depends upon the relative credibility and accuracy of the new witnesses as compared to those who g ave contrary testimony at trial, then the r efusal to hold an evidentiary

hearing is an abuse of discretion.

I apply these standards of review, n o t the more deferential approach taken by the majority

, as I a naly z e whether Stewart has met the Schlup standard.

3 W e are to co n sid er a p etitio n er’ s d i lig en ce in p u rsu in g h is petitio n as

a f a c t o r i n o u r assessm en t o f w h eth er actu al in n o cen ce h as b een

co n v in cin g l y sh o w

n

. S ee Perkin s , 1 3 3 S. C t. a t 1 9 3 5

– 3 6

. T h at

co n sid eratio n , h o w ev er, w eig h s v ery little h ere, b ecau s e : ( 1 ) th e

ex o n eratio n o f R ich ard L ee, Stew art’ s co

- d ef en d an t, th ro u g h in f

o rm atio n p ro v id ed b y J ack so n , itself o ccu rred y ears p o st- trial, y et th at i n f o rm atio n , a lso o f i m

p o rtan ce to Stew art’ s S

ch lu p claim

, w as co n sid ered r e l i a b l e

en o u g h to o v ertu rn L ee’ s co n v ictio n ; an d (2 ) Stew art m issed th e A EDP A f ilin g d ead lin e b y

v ery little, as I ex p lain ed in

P art I.S T E W A R T V

. C A T E 44

B

.

The Schlup standard is “ex a cting ”; it “‘per mits r eview only in the “ ex traordin a r y ” c a se.’” Lee
, 653 F .3d at 938 (quoting House
, 5 47 U.S. at 538). “ [ T ] enable a ctualinnocence g a teway pleas are rare: ‘[ A] petitioner do e s n ot meet the threshold requirement unless he persuades the district court that, in lig ht of the new e v idence, no juror, acting reasonably

, would have v o ted to find him g uilty bey ond a r ea s o n a ble doubt.’” P erkins

, 133 S. Ct. at 1928 (altera t i o n in orig inal) ( q uoting Schlup

, 513 U.S. at 329). This “demanding ” standard is “seldom met.” Id.

Still, Schlup “does not r e q uire absolute certainty a

bout the petitioner’s g uilt or innocence.” House
, 547 U.S. at 538. “[ W ] here post-conviction evidence casts doubt on the conviction by undercutting the reliability of the proof o f g uilt, but not by affirmatively proving innocence, that can be
enoug h to pass throug h the Schlup g at e w a y to allow consideration o f otherwise barred claims.” Lee
, 653 F

. 3d at 938, 943 (quoting Sistrunk , 292 F

. 3d at 673).

I n my v i e w, the record reveals this case may well be an “ex traordinary

” o ne, of the ty

pe contemplated by Schlup a nd Perkins

, see Perkins

, 1 33 S. Ct. at 1931, in that it “ fall[ s] within the narrow c lass o f cases i m p l i c ating a fundamental miscarriag e of justice.” Majoy v. Roe
, 296 F .3d 770, 776 (9th Cir. 2 002). “ This is not a case of conclusive ex oneration. Some aspects o f the State’s evidence

. . . still support an inference o f g uilt. Yet the central

. . . proof connecting [ Stewart] to the crime”—here the victim s ’ ey ewitness identification of thei r a s sailants—“has been called into question, and [ Stewart] has put f o rward substantial evidence pointing to a d ifferent suspect”—namely

, Darnell J ack s o n.S T E W A R T V

. C A T E 45

House
, 547 U .S. at 553–54. Absent an evidentiary hearing at which b o th the credibility of the post-trial witnesses and the
accuracy of their statements ar e p r o b ed, the district court could not properly d etermine, and we cannot properly review, whether, a fter hearing all o f the conflicting testimony

, it is “more likely than n o t [ that]

, in lig ht of the new evidence,

. . . any reasonable juror would have r easo n a ble doubt” as to Stewart’s g uilt. Id. at 538 (emphasis added).

I would r emand for the district court to determine, after a Schlup hearing

, whether this is such a “rare case.” I d. at 554. To understand why

requires ex amining the facts of this case in some detail.

i.

Stewart was convicted, after a joint trial, of two counts o f attempted murder. He was identified at trial as the driver of

a car from which a passeng er, Stewart’s co-defendant, R i c h a r d L ee, shot Mark a nd Michael Parish ( “the Parish brothers”) in a nearby vehicle, injuring both non-fatally

. The prosecution’s c ase ag ainst both d e f e ndants rested chiefly on the ey ewitness testimony of the v ic t ims, who insisted that they had seen clearly t h e f aces o f their assailants—both the

s h ooter, who was phy sically closer to them (according to Mark Parish’s trial te stimony

, approx imately eig ht feet
away ), and the drive r

— a n d could also identify the c ar involved. I n c losing arg uments, the prosecution underscored the Parish brothers’ certainty of their identification, r epeating the Parish’s words: “I ’ll never f org et the people who shot me. I ’m not mistaken.” And, to f urther emphasiz e the victims’ reliability

, the g overnmen t e x plained the risks the Parish brothers faced in testify ing

, because they would b e branded as “snitches” in their g a

ng milieu.S T E W A R T V

. C A T E 46

The prosecution’s case ag ainst Stewart also relied heavily on descriptions o f the car from which the victims were shot. A s I detail in Part I I .B .ii those descriptions, unlike t h e id e ntification of the assailants, were wildly contradictory

, both for each individual witness and among witnesses, and so worth little as evidence ag ainst Stewart.

The pros ecution’s additional evidence ag ainst Stewart included: Stewart’s affiliation with the Sky line Pirus, which

was hostile to the Parish brothers’ g ang ; p olice testimony that Stewart was found, hours after t h e shooting

, cleaning his mother’s B MW ; evidence of g un-shot residue detected o n Stewart’s v e hicle the nig ht of the shooting ; contradictory accounts, including f

r om Stewart and his mot h e r , reg arding Stewart’s whereabouts on the eveni n g o f the shooting ; a nd testimony of an acquaintance of the Parish b r others, Kevin B rown, that Stewart had g loated sometime after the shooting

, “I killed y o ur homeboy

, ” which B r own assumed was a reference to the shooting of the Parish brothers (even thoug h there were two of them and they were not killed).

I n 2000, four y ears after the trial, L ee’ s c o n viction was overturned, b ased on a statement from a third party informant and f riend of L ee’s, Darnell J ackson, t hat directly contradicted t h e victims’ testimony as to the identity of the shooter. J ackson named Arnold Adkins, recent l y deceased,

as the shooter of t h e P a r ish brothers, while asserting that Stewart was the driver of the car from which they were shot. I t does not a p p ear f

rom the record that J ackson’s statement

was made under oath. Nonetheless, the g overnment d i d not oppose L ee’s h abeas petition, conceding that “there appears to be newly d i s covered evidence which is sufficiently credible to cast doubt on the integ rity of [ L ee’s] convictions.”S T E W A R T V

. C A T E 47

B e cause h is convictio n was based larg ely on the very

same victim a ccounts called into q u e s t ion by the post-trial evidence ex culpating L ee, Stewart filed h is o wn state h abeas petition, asserting his innocence. See In re W eber

, 11 Cal. 3d 703, 724 ( 1974). The ba sis for his petition was evidence acquired throug h his att o rney ’s investig ation of the information provided in L ee’s habeas case—namely

, a letter
sent by the District Attorn ey t o L ee’s counsel describing J ackson’s statement. 4 Ste wart contended that J ackson’s
statement g ravely impeached the Parish brothers’ account o f the crime, and that other evid ence indicated J ackson, not Stewart, had been the driver. I n support of h is petition, Stewart submitted declarations from three acq u a intances o f J ackson’s—Ro y Vinson, A rnold J ohnson, and Tatianna Daniels—all of whom implicated J ackson in the Parish brothers’ shooting ; a stat e m e n t f rom Maurice L eag ue, a friend of b oth Mark Parish and St e w a rt; a statement from Stewart’s co-defendant, L e e; and a statement from Stewart’s attorney

.

The California Superior Court denied post-conviction relief, holding that “the e videnc e i s not credible because o f inh e r e n t inaccuracies and witness bias” and fails to “completely undermine the p r o s e c u tion’s case.” I n the last reasoned state court decision on Stewart’s case, the California Court o f Appeal ag reed, concluding that “[ t] he d eclarations
at best raise an issue of credibility without p r o v i d ing a

4 Stew art so u g h t access t o bo th J ack so n ’ s s tatem en t itself an d to th e f iles related to t h e state’ s in v estig atio n o f L ee’ s h ab eas p etitio n , bu t w as p ro v id ed w ith n eith er. T h ose f iles w ere later su

b m itted to t

h e d istrict co u rt f o r in cam era rev iew

, an d w ere su b seq u en tly f

iled u n d er seal, aft e r th e d istrict co u

rt d eterm in ed th at th ey d id n o t “ ex o n erate” Stew art, an d th u s

w ere n ot su

b j ect to d isco v ery . I d iscu ss th e im p act o f th o se f iles later.S T E W A R T V

. C A T E 48

complete d efense.” B ecause the new evidence d oes n ot “point unerring ly to innocence,” the Court of Appeal held, it does not justify acqu ittal on the basis of a substantive claim of actual innocence. Neither state c o u r t h e ld an evidentiary hearing

.

The bur d e ns of proof and standards applicable to a substantive actual innocence claim under California law a nd

a Schlup claim of procedural a ctual innocence fo r f ederal habeas purposes are different. S ee Schlup

, 513 U.S. at 313–16; In re Clark

, 5 Cal. 4th 750, 7 66 (1993); In re W eber

, 11 Cal. 3d at 724. T o d emonstrate act ual innocence, California courts require a “complete defense” and evidence pointing “unerring ly to innocence.” In re W eber , 11 Cal. 3d
at 724, 725. I n contr a s t , n ew evidence undermining the credibility of trial witness es c a rries weig ht under S chlup

, a s credibility assessments are w ithin the sc o p e of the h abeas court’s review, and affirmative proof o f i nnocence is not necessary

. See Schlup

, 5 1 3 U.S. at 330. Thus, Stewart does
not need to clear the same hurdles to pass throug h the Schlup
g ateway as he did to establish subst a n t i v e actual innocence under California law.

ii.

Here is a summary of the new evidence pres ented on habeas:

F irst, J ackson’s ex -g irlfriend, Tatianna Daniels, attested that J a ck s o n c o n fessed to her that h e was the driver of the vehicle from which Arnold A d k ins shot the Parish brothers. Her declaration states that J ackson d rove “ a r e d or reddishbrown 4-door H onda,” which he indicated was the car used in the shooting

.S T E W A R T V

. C A T E 49

Second, V inson’s decl aration provides circumstantial evidence o f J a c kson’s involvement, althoug h it does not directly name J ackson a s the driver o f the car from w hich the Parish brothers were shot. Vinson stated that around the time of the shooting (September 23, 1995), Adkins and J ack s on

c ame to Vinson’s h ouse in a rust-colored Honda, seek i n g t o rid themselves of a “ h o t ”

. 357 revolver, the ty pe o f weapon used in the Parish b r others shooting

. Around that same time, Vinson c ontinued, Adkins confessed to shooting two men a nd said that the person with him at the time of the shooting was

a “close friend.” Vinson k new that Adkins and J ackson were close friends and spent a lot of time tog ether.

The circu m s tantial e v idence in Vinson’s declaration implicating J ackson is corroborate d by Haug hen, Stewart’s attorney

. Haug hen’s declaration states that Vinson informed him by letter that J ackson was the driver of the vehicle from which Adkins shot the Parish brothers.

Third, J ohnson’s declaration states that A d k i ns told him in 1 996 that h e (Adkins) and J ackson had been fired on while
at a nig ht club sometime in early 1995, and had subsequently “taken care o f” the p e o p l e responsible. W h en he asked Adkins what he meant by “taken care” of them, J o h n s o n attested, Adkins said “he a nd Dar n e l l J ackson had shot a nd killed them.” A dkins was killed not long after this ex chang e with J ohnson. J ohnson declared that h e spoke w ith J ackson
at Adkins’s funeral, where J ackson told him he did not think that Adkins’s death had any thing to do with the shooting s in which he (J ackson) and Adkins had been involved, because “every one believed that two other g uy s named PeeDuS T E W A R T V

. C A T E 50

[ Stewart’s street moniker] and Puff [ L ee’s street moniker ] had done the shooting and had been locked up for it.” 5

F ourth, Maurice L eag ue stated that Mark Parish told him he was unsure who shot h i m

. A t t rial, a defense witness, Kenneth Anderson, testi f

i e d t h a t Mark’s brother, Michael, did
not know if Stewart and his co-defendant L ee were involved, but was pressured to identify them.

F ar from being “duplicative” of Anderson’s testimony

, a s the majority

asserts, Maj. Op. at 21, L eag ue’s declaration is

e n t i r e l y d i s t i n c t f

r o m

— t h o u g h b r o a d l y c o n s i s t e n t with—evidence presented at trial, if for no other reason than that it pertains to the other brother, Mark. T he testimony o f
two different individuals to similar b ut di s t i nct f acts is corroborative, not cumulative, and thus bears on the perceived credibility of the Parish brothers. Moreover, even cumulative evidence c an “tip the scal e s ” f o r or ag ainst a defendant. See Parle v. Runnels

, 505 F .3d 922, 928 (9th Cir. 2007) (alterations omitted) (quoting Kr u l ewitch v

. United States
, 3 3 6 U.S. 440, 444–45 (1949); Hawkins v. United States
, 3 58 U.S. 7 4, 80 (1958)) (holding pre judicial erroneously

admitted evidence, even if cumulative).

F ifth, L ee, Stewart’s former co-defendant, stated that the District Attorney

contacted L ee with an offer to provide L ee with information, f

urnished by J a ckson, that would ex onerate L e e of the Parish brothers’ shooting

, if L ee promised not to testify in a

n u pcoming trial at w hich J a c k s o n was a key

5 A cco rd in g to test im o n y at trial, p o l ice g an g f iles list Stew art’ s street

n am e as “ P ee- Du ,” “ P

- Du ” o r “ P

- Dew ” an d L ee’ s as “ P u f f ero o” o r “ P u f

f .” Ref eren ces to “ P

- Du ” an d “ P u f f ero o ” ap p ear in th e trial tran scrip t as w ell as th e p o st- trial reco rd an d th e p arties’ b rief s.S T E W A R T V

. C A T E 51

witness. L ee’s testimony in that trial w ould have impeached J ackson. L ee ag reed to this quid pro quo. His attorney filed

a habeas petition on h is b ehalf, using the i n fo rmation provided by

the District Attorney

.

L e e ’ s d eclaration a lso states that, in the course of the District Attorney ’s investig a tion o f his habeas p e t ition, he

was interviewed while housed at Salinas Valley State Prison about the Parish brothers’ incident. L ee attested that he told the investig ator that neither he ( L ee) nor Stewart was involved in the shooting

, but that two other individuals were responsible. L e e’s declaration does not, however, name those individuals.

The district court g ave lit t le weig ht to L ee’s statement because h e did n o t d i s c lose the identity of the driver of the vehicle. B ut if the driver was J ackson, as Stewart’s post-trial evidence indicates, L ee’s refusal to n am e him could be

ex p lained b y his desire not to impug n the credi b i lity of the
very individual whose statement secured his own release.

F inally

, in support of his S chlup claim, Stewart requested discovery of all d ocuments on which the District Attorney ’s office b ased the decision n ot to oppose L ee’s habeas petition. After review i n g those materials in c amera, the district court denied the discovery request, concluding that the evidence would not “ex o nerate” Stewart, and thus did not advance his Schlup c l aim. My o wn inspection of those materials, however, leads me to conclude that they would h elp to meet the Schlup standard—which is n o t ex oneration—an d t h at discovery under sea l therefore should have been allowed. The sealed documents are relevant n ot only to the reliability of evidence presented at trial but also to the reliability of the post-trial declarations S t e wa rt presented on habeas. TheyS T E W A R T V

. C A T E 52

further undermine th e r eliability of the Parish brothers’ testimony ab o u t t h e identity of their assailants and provide

some circumstantial evidence that J ackson, not Stewart, may have been involved in the crime. The d i s t r i ct court’s denial of Stewart’s discovery moti on was therefore an abuse o f discretion. See Cooper v. Brown
, 510 F .3d 870, 877 (9th Cir. 2007) (identify

ing the applicable standard of review).

I f credible, the n ew e v idence would thus make it more likely than not that no reasonable juror w ould convict Stewart based on the supplemented record.

The majority ’s c ontrary conclusion rests o n two

a s s u m ptions. F irst, the majority a ssumes that the eviden c e

ex o nerating L ee onl y undermines the Parish brothers’ identification o f Stewart “by implication,” if at all, because “in fact, J a ckson’s confession i m p licated Stewart while

ex o nerating L ee.” Maj. Op. at 20. B ut J acks o n ’ s s tatement impeaching the Parish brothers’ identification o f L ee as the shooter significantly damag es the credi b i l i ty of the Parish brothers’ testimony , g iven that: (1) the shooter was closer to the brothers than the driver; and (2) the brothers repeatedly avowed their certainty reg a r d i n g the shooter’s identity

, y et were disproved as to that identity by J ackson.

This impeachment amplifies the problems that already marred t h e brothers’ testimony at trial. That testimony was riddled with inconsistencies, i ncluding contradictory
statements r eg arding the color and ma k e o f the car, the driver’s hair sty le, and whether they h ad ever seen the shooter

or driver before the incident. Given those flaws in their trial testimony

, a d e monstration that the b r others’ identification o f

one of the assail a n ts—the easier one to identify

, g iven their location—was decidedly wrong w o u ld likely tarnish theS T E W A R T V

. C A T E 53

credibility of their identifications of t h e o ther assailant so severely that a reasonable juror w o u l d essentially discount them.

F urthermore, i f J a ckson were actually the driver, a s Stewart’s post-trial witnesses indicate, then he would have a clear motive to impl i c a te Stewart in his statements

ex o nerating h is friend, L ee. The majority reaches a contrary conclusion, presuming that reasonable jurors would believe J ackson’s statements rather than the contradictory testimony by Daniels, Vinson, or J ohnson, whose declarations all implicate J ackson t o o n e deg ree or another in the Parish brothers’ shooting

. B u t that a ssumption lack s f o u ndation, particularly g iven that Stew a r t ’ s p ost-trial witnesses sig n ed

sworn statements, while the record contains n o declaration from J ackson under o ath. Even were it otherwise, we cannot g aug e the relative credibility of post-trial witnesses—i. e

. , compare J a ckson’s credibility to Daniels’s—when none have testified.

The majority ’s seco n d a ssumption is that, even if the Parish brothers’ identification o f Stewart were discredited, “sufficient d irect and circumstantial evidence independent o f their testimony placed Stewart and his car at the scene of the shooting .” Maj. O p

. a t 2 5

. Under the majority ’ s v iew, reasonable jurors would still fi n d S tewart g uilty b ey ond a reasonable d oubt, b a s e d principally on testimony indicating that his c ar was involved in t he c r ime. B ut the testimony about the ca r was wildly inconsistent. No reasonable juror would have co n v icted Stewart b a sed primarily on the evidence concerning the car from which the shots were fired.

F irst, we cannot, as the m a jority w ould have it, presume that the jury concluded “[ t] he B MW involved in the shootingS T E W A R T V

. C A T E 54

was identical to the B MW that Stewart dro v e , ” o r, as the district c o urt did, that “ the jury rejected the arg ument that a b r o wn o r rust-colored Honda was involved.” I t is entir el y possible that the jury convicted Stewart in spite o f i ts uncertainty r e ga rding the c ar, based on the victims’
ey ewitness identification. Thus, we must evaluate the c ar evidence directly

, rather than rely ing on the jury ’s assumed finding s reg arding the vehicle.

Second, e ven if the car evidence were much strong er than it is, a r eason a b l e juror would likely not convict based primarily on such evidence. People lend cars to one another. That a particular car w as u sed i n a shooting is not proof bey ond a reasonable doubt—without reliable identification o f the driver—of who was driving the vehicle.

Third, and critically

, the Parish brothers’ desc r iptions o f the car involved in the shooting are rife with inconsistencies. I n their pretrial interviews, both brothers described the car a s “rust-colored” or a “b r o wnish-rust color,” but a lso— inconsistently

—as a lig ht silver-g ray

ish, lig ht blue, or bluishg ray color.

At trial, Mark Parish testified that the car from which he and his brother were shot was a “ b ro w nish-rust c olor,” a nd admitted that he had also described the c ar as “rust-colored” during the preliminary hearing

. W hen Mark was shown two paint samples from a B MW dealer, h e selected the sample that correctly depicted the color of Stewart’s mother’s c ar. But when asked what “rust-colored” means to him

, M a r k said, “like a copper,” and ag reed that the water jug in the courtroom, which the j u d ge described a s “brown or c opper

c o lor,” was “rust.” When f urther pressed on his understanding of the color “rust,” Mark asked to spea k toS T E W A R T V

. C A T E 55

“counsel.” One police officer testified at trial that Mark h ad said the veh i cle was “a dark-colored B MW -ty pe vehicle,” “possibly maroon.” A nother off i cer testified that Mark h ad described the car as “lig

h t bluish or g ray

ish.”

His brother, Michael, similarly testified that the car from which he was shot was “a lig h t brown, tan, rust color,” a nd define d r u s t as “a lig ht brown, a brownish color, like a tannish.” Then, when shown two paint samples from a B MW dealer, Mi c h ael, like h is b rother, selected the sample that
correct ly depicted the color of Stewart’s mother’s car. He also admitted, however, that he had d escribed the car to a police officer a s “rust c olor” imme d i a tely after the shooting and later in t he hospital, and acknowledg ed that h e repeated that same account o f t h e c a r ’s color at the preliminary hearing

. When a sked w hether he subsequently chang ed the descrip tion to “bluish-g ray ” or “silver,” Michael stated that he did not recall. On cross-ex amination

, M i chael answered affirmatively w hen asked whether the assailants’ car w as “a rust-colored B MW .”

The brothers’ accounts also varied with reg ard to whether the car from which they w ere shot had two or four doors, a nd whether its tires h a d three-star or five-star rims. The other
ey ewitnesses called by the prosec u t i on, Michael Sturdivant and Michael Cole, described the car still d i f f e rently

. Sturdivant testified that he saw a g ray or w hite car, which could have been a B MW or a Nissan Sentra, swerving in a nd
out of traffic near where the shooting occurred. Cole testified that after hearing shots from his home, he stepped outside to g limpse a “shiny , lig ht-colored, possibly g ray roof [ of a car] as it disappeared” out of sig ht.S T E W A R T V

. C A T E 56

The evidence Stewart p r e sented on habeas a dds to the uncertainty r e g arding the c ar involved in the shooting

. One
ey ewitness, whose statement was taken several months a fter the shooting

, described seeing “ a beig e , dark colored car like

a 79 Honda Accord or Civic driving slow” at the scene of the Parish brothers’ shooting. Other post-trial d eclarations implicating J ackson

, rather than Stewart, as the driver a nd Arnold Adkins a s the shooter d escribe J ackson’s car as a reddish-brown four-door Hond a a n d attest to seeing Adkins and J ackson tog ether in a rust-colored Honda w ith tinted windows o n the day s before the shooting

. This evidence
sug g ests, at the very least, that o ther g ang members may have had vehicles matching one o r another of the d escriptions o f the car involved in the Parish brothers’ sho o t i n g

. Yet, a police officer involv ed i n investig ating the Parish brothers’ shooting testified at trial that no o ne looked throug h any g ang files to d etermine whether any one o t her than Stewart was known to drive a “rust-colored” B MW or similar model car.

The upshot is that n o reasonable juror would find the c ar evidence alone a sufficient basis to c o n vict Stewart. A side from the inherent uncertainty as to who w as driving

, both the color and the make of the c ar used i n t h e s hooting are far from clear when the evidence is considered in its entirety

.

iii.

Given the w e ak n ess of the car e vidence, the other circumstantial evidence presented a t t rial does n ot add enoug h support to the verdict to el i m i n a t e reasonable doubt as to g ui l t

. F irst, there is evidence concerning Stewart’s whereabouts at the time of the shooting

. The majority points
to S t e wart’s mother’s testimony placing Stewart and the B MW he drove in the a

rea of the shooting around the time o fS T E W A R T V

. C A T E 57

the crime. Maj. Op. at 20. B u t her testimony on this point is,
at most, indeterminate. She testified that she thoug ht she saw the tail e nd of her own B MW but later determined it was not hers. A police detective testified t h a t Stewart’s mother h ad stated to p olice that she saw her son in the B MW w hile she

w as picking up her d aug hter at her mother’s house on the evening of the shooting

, in the vicinity of the crime. A t trial, however, Stewart’s mother denied making such a statement.

As to the g unshot residue f o u n d on Stewart’s mother’s B MW
, the prosecution’s ex p ert witnesses testified that such residue is easily transferred from one surface to another, can be deposited by sources other than g uns, and would not likely remain adhered to the surface of a moving vehicle.

The evidence that Stewart w a s “ cleaning ” his car when the police located him on the nig ht o f the shoot ing is also thin. There was no testimony that Stewart was seen w ashing
t h e v e h icle o r r emoving any thing that could have been incriminating

. Nor is there any sug g estion of e v i dence connected to the crime that could have been “ cleaned” away , such as blood. The officer who encountered Stewart testified that he d id not remember w hat Stewart was d o i n g t h at g ave him the impr e s s i o n he was cleaning the vehicle when the officer approached him in the parki n g lot of Stewart’s apartment complex

. A ccording to the officer’ s t e stimony

, Stewart appeared to have been p i c king up p apers or bottles from underneath the seat of the car, but Stewart ceased doing so at the officer’s request, and no attempt was made to seiz e any of the items he may have d iscarded. Thus, the conclusion that Stewart was cleaning the car was not only speculative but did not involve cleaning up any thing that was even arg

u ably evidence of the crime. A reasonable juror is unlikely to g iveS T E W A R T V

. C A T E 58

weig ht to the officer’s vag ue o b servations as proof o f Stewart’s g uilt.

B r own’s testimony at trial that Stewart brag g ed about his involvement in the Parish brothers’ shooting provides lit tle additional support for Stewart’s conviction. A post

- t r i al witness attested that Stewart never came to the school where he alleg edly spoke with B rown about the shooting

. More importantly

, t h e reported statement w as about a k illing ; it referred to one person, r ather than two; and it did not mention the Parish brothers by n ame

. Neither of the Parish brothers died. Another member of the Parish brothers’ g ang was murdered on the same nig ht the brothers were shot. Stewart has not been c h a rged with that murder, so any evidence concerning it is irrelevant.

I I I

.

Under the Schlup g ateway standard, wh e n “ t he newly presented evidence

. . . call[ s] into question the credibility o f the witnesses presented at trial[

, ]

. . . the h abeas court may have to make some credibility a ssessments.” Schlup

, 513 U.S

. a t 3 3 0

. As the majority notes, Schlup did not identify whether and when that assessment requ i r es an evidentiary hearing

. Ma

j

. O p. at 2 3–24. F urther, althoug h
t he district court here a ccepted all the post-trial evidence a s credible—in the sense that the witnesses were telling the truth

as they perceived o r remembered it—it went on to decide on a cold record the accuracy of that testimony

, as compared to the accuracy

of the inculpatory

testimony

at trial.

I n my view, Stewart’s new evid e n c e , if c redible, combined with the ex o neration o f his c o-defendant and the weakness of the trial ev i d e n ce, sufficiently indicate thatS T E W A R T V

. C A T E 59

J ackson was the driver of the vehicle f r o m which the Parish brothers wer e shot, so as to entitle Stewart to override the AEDPA time limit for f

i l i n g a habeas claim. See Perkins

, 1 3 3 S. Ct. at 1 932. That a declarant’s testimony mig h t b e impeachable because of inconsistencies with other evidence is r eason to h old an ev i d e n t i a r y hearing

, not to refrain from holding one. Unless proffered testimony is far-fet c hed o r disproven by phy sical o r documentary evidence, a court cannot reasonably determine the credibility and reliability o f witnesses other than throug h an in-person hearing

, with crossex a mination. I n particular, there is no sensible way to resolve the Sch l up issue h ere without a chance to cross-ex amine J ackson on his assertion that Stewart was the driver, in lig ht of substantial post-trial evidence that J ackson was the driver. B ecause we cannot evaluate Stewart’s Schlup claim without

an evidentiary hearing

, the district court’s failure to conduct such a hearing is an abuse of d iscre t i o n

. See supra Part I I .A.iv.

The key question in a ssessing whether the district court

a b used its d iscretion concerning holding an evidenti a r y hearing is whether such a hearing “would p r o d uce evidence

more reliable or more p r obative” with reg a r d t o Stewart’s assertion of actual innocence than the declarations b efore the district c ourt district. Griffin v . Johnson

, 350 F .3d 956, 966 (9th Cir. 2003). Her e , t h ere is no doubt that it would, b y enabling the court to assess the basis of the a ffiants’ statements; probe the r easons fo r t h e ir delay in coming forward; and e x plore other factors bearing on how reasonable jurors a re likely to perceive the overall r eliability of v arious witnesses’ testimon y

. The district court’s dismissal o f Stewart’s Schlup claim in ab s en ce of such a hearing was an abuse of discretion.S T E W A R T V

. C A T E 60

Conclusion

F or the f oreg oing reasons, I w ould reverse the district court’s dismissal on timeliness g rounds, or, in the alternative, remand for an evidentiary hearing on Stewart’s Schlup c laim. Neither of those dispos i t i o n s w o u l d r esolve whether Stewart’s petition presents federal claims cog niz able under § 2254, a nd I ex press no opinion as to the merits of his petition.