FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD R. LEE, 

No. 09-35276 Petitioner-Appellee,

D.C. No.

v.  1:02-cv-00300-CL

ROBERT O. LAMPERT,

OPINION Respondent-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted

October 5, 2009—Portland, Oregon

Filed July 6, 2010

Before: Diarmuid F. O’Scannlain and N. Randy Smith,

Circuit Judges, and Charles R. Wolle,*

Senior District Judge.

Opinion by Judge O’Scannlain;

Concurrence by Judge N.R. Smith

*The Honorable Charles R. Wolle, United States District Judge for the

Southern District of Iowa, sitting by designation. 

9515
COUNSEL

Stephen R. Sady, Chief Deputy Federal Public Defender of

Oregon, argued the cause for the petitioner-appellee and filed

the briefs. Lynn Deffebach, Research and Writing Attorney,

also was on the briefs.

Janet A. Klapstein, Senior Assistant Attorney General of Oregon, argued the cause for the respondent-appellant and filed

the briefs. John R. Kroger, Attorney General, Jerome Lidz,

Solicitor General, Carolyn Alexander, Senior Assistant Attor9518 LEE v. LAMPERT
ney General, and Erin C. Lagesen, Senior Assistant Attorney

General, also were on the briefs.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether to recognize a judge-made exception to the statute of limitations for federal habeas relief in the

case of a state prisoner who makes a showing of actual innocence in his original petition.

I

An Oregon state court jury convicted Richard Lee of two

counts of first-degree sexual abuse and two counts of sodomy

of a four-year-old named Matthew. Lee appealed, but his

counsel filed the Oregon equivalent of an Anders brief, and

the Oregon Court of Appeals affirmed the conviction. Lee did

not seek review in the Oregon Supreme Court, so direct

review became final on September 30, 1996. 

Lee timely filed for state postconviction relief. He alleged,

inter alia, that he received ineffective assistance of counsel

regarding the initial exclusion of evidence concerning another

suspect, the appeal of the same issue, the failure to call an

expert witness on the reliability of child testimony, and the

calling of witnesses harmful to the defense. But his petition

was denied. The Oregon Court of Appeals affirmed, and the

Oregon Supreme Court denied review. State postconviction

proceedings thus became final on September 24, 2001. 

Lee petitioned for habeas relief in federal district court,

again alleging, inter alia, ineffective assistance of counsel.

Initially, the district court, relying on a magistrate judge’s recommendation that Lee did not appeal the state trial court’s

LEE v. LAMPERT 9519
denial of postconviction relief, dismissed his petition as

untimely under the one-year federal statute of limitations for

seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). We

reversed. Lee v. Lampert, 92 F. App’x 532 (9th Cir. 2004).

Lee then filed an amended petition in 2005, which was held

in abeyance pending determination of the retroactivity of

Crawford v. Washington, 541 U.S. 36 (2004). After resolution

of that issue, the magistrate judge again recommended denying the habeas petition. 

But this time the district court disagreed. After conducting

several evidentiary hearings over the fall and winter of 2008,

it granted the petition for a writ of habeas corpus on March

24, 2009, finding that Lee established actual innocence and

ineffective assistance of counsel and ordering Oregon to

release or to retry Lee. Lee v. Lampert, 607 F. Supp. 2d 1204,

1221-22, 1226 (D. Or. 2009). The State timely appealed and

a motions panel stayed the district court order, placing the

case on expedited calendar for our review.

II

The State contends that Lee’s petition for a writ of habeas

corpus is simply time-barred. Lee responds that the district

court properly applied an “actual innocence” exception to the

one-year statute of limitations for his original petition.

A

[1] We begin, as always, with the text of the statute.

AEDPA provides that “[a] 1-year period of limitation shall

apply to an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court.” 28

U.S.C. § 2244(d)(1). The statute specifies that the one-year

period runs from the latest of four dates: 

(A) the date on which the judgment became final

by the conclusion direct review or the expiration of

the time for seeking such review; 

9520 LEE v. LAMPERT
(B) the date on which the impediment to filing an

application created by State action in violation of the

Constitution or laws of the United States is removed,

if the applicant was prevented from filing by such

State action; 

(C) the date on which the constitutional right

asserted was initially recognized by the Supreme

Court, if the right has been newly recognized by the

Supreme Court and made retroactively applicable to

cases on collateral review; or 

(D) the date on which the factual predicate of the

claim or claims presented could have been discovered through the exercise of due diligence. 

Id. § 2244(d)(1)(A)-(D) (emphases added). The limitations

period is tolled for “[t]he time during which a properly filed

application for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pending.”

Id. § 2244(d)(2). 

[2] So written, the statute establishes three “very specific

exceptions” to the primary date for the running of the limitations period, that is, the date on which direct review becomes

final. David v. Hall, 318 F.3d 343, 346 (1st Cir. 2003); Felder

v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000) (similarly contrasting the date on which direct review becomes final and the

other “three circumstances”). Those exceptions involve statecreated impediments, new constitutional rights, and diligent

discovery of new facts. 28 U.S.C. § 2244(d)(1)(B)-(D). Notably absent from this enumeration of exceptions is an “actual

innocence” exception.

B

[3] The parties do not dispute that Lee did not timely file

his federal habeas petition, and they are correct. Lee filed for

LEE v. LAMPERT 9521
state postconviction relief nearly a year and a half after his

direct appeal became final.1 Then, after his state postconviction relief proceedings ended, during the pendency of which

the limitations period is tolled,2 Lee waited more than six

months to file for federal habeas relief. All told, Lee filed his

federal habeas petition well after the one-year statute of limitations had expired. Lee does not allege, with good reason,

that one of the other start dates for the statute of limitations

is applicable: the state created an impediment to filing, 28

U.S.C. § 2244(d)(1)(B), a new constitutional right relevant to

his case had been announced, id. § 2244(d)(1)(C), or he discovered new facts through the exercise of due diligence. Id.

§ 2244(d)(1)(D).

[4] Despite his untimeliness, the district court held, and

Lee maintains in response to the State’s argument, that he is

entitled to have the claims in his original petition heard on the

merits if he makes a showing of actual innocence pursuant to

Schlup v. Delo, which allowed such a gateway through limitations on second or successive habeas petitions. 513 U.S. 298,

315 (1995); see House v. Bell, 547 U.S. 518, 537 (2006)

(applying gateway to exhaustion requirements). The question

for us is whether there also is such a “gateway” actual innocence exception through the statute of limitations for original

petitions. This is a question of first impression in our circuit.

Majoy v. Roe, 296 F.3d 770, 776-77 (9th Cir. 2002)

(“express[ing] no opinion” on “whether surviving the rigors

of this [Schlup] gateway has the consequence of overriding

1Lee filed for state postconviction relief on February 23, 1998, more

than sixteen months after direct review of his conviction became final on

September 30, 1996. While timely for state purposes, such was not within

the one-year limit required by AEDPA. 

2The parties dispute exactly how late Lee has filed. The state argues that

he filed five years late because the limitations period is not tolled during

the pendency of state postconviction relief initially sought after the oneyear statute of limitations. Lee responds that it is so tolled. Ultimately, this

dispute does not matter, so we decline to evaluate the parties’ claims. 

9522 LEE v. LAMPERT
AEDPA’s one-year statute of limitation, a legal question not

yet decided by this Circuit or the Supreme Court.”). 

But we do not write on a blank slate. Four circuits have

held that there is no actual innocence exception serving as a

gateway through AEDPA’s statute of limitations to the merits

of a petitioner’s constitutional claims in original petitions,

Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005)

(Easterbrook, J.); David v. Hall, 318 F.3d 343, 347 (1st Cir.

2003) (Boudin, J.); Cousin v. Lensing, 310 F.3d 843, 849 (5th

Cir. 2002) (Smith, J.); Flanders v. Graves, 299 F.3d 974, 976-

78 (8th Cir. 2002) (R. Arnold, J.), while one circuit has held

that there is such an exception. Souter v. Jones, 395 F.3d 577,

585 (6th Cir. 2005) (Moore, J.).

C

In Holland v. Florida, No. 09-5327, 2010 WL 2346549

(U.S. June 14, 2010), the Court considered whether AEDPA’s

statute of limitations period is subject to equitable tolling. Id.

at *9-*12. Agreeing with all eleven circuits, the Court held

that it is. The Court began its analysis by reiterating the wellrecognized principle that nonjurisdictional statutes of limitation are subject to a rebuttable presumption in favor of equitable tolling. Id. at *9-*10. Because AEDPA’s statute of

limitations is nonjurisdictional, the only inquiry before the

Court was whether there was sufficient evidence to rebut the

presumption. The Court considered various textual arguments,

such as the canon of inclusio unius est exclusio alterius, but

concluded that there was not sufficient evidence to overcome

the presumption. Id. at *10-*12.

Here, by contrast, there is no presumption that nonjurisdictional statutes of limitations are normally subject to an actual

innocence exception. No court has ever held that there is such

a presumption, and for good reason: an actual innocence

exception would not make sense in the context of any statute

of limitations except the one at issue here. Nor is the actual

LEE v. LAMPERT 9523
innocence exception a species of equitable tolling, such that

the presumption in favor of equitable tolling entails a presumption in favor of an actual innocence exception. Quite the

contrary, the actual innocence exception is not a type of tolling because it does not involve extending a statutory period

for a particular amount of time. Moreover, the actual innocence exception has nothing to do with failing to meet a deadline because of extraordinary circumstances, which is the

situation addressed by equitable tolling. Id. at *12. Our

inquiry, therefore, is not limited to whether there is sufficient

evidence to rebut a presumption. Rather, we must determine

the best reading of the statute in the first instance.

[5] The omission of “actual innocence” from the enumerated list of exceptions in the statutory text is significant, as

four of our sister circuits have held. Since “section 2244(d)

comprises six paragraphs defining its one-year limitations

period in detail and adopting very specific exceptions,” the

First Circuit reasoned, “Congress likely did not conceive that

the courts would add new exceptions and it is even more

doubtful that it would have approved of such an effort.”

David, 318 F.3d at 346 (emphasis added). It is not our place

to “engraft an additional judge-made exception onto congressional language that is clear on its face.” Flanders, 299 F.3d

at 977. We “cannot alter the rules laid down in the text.”

Escamilla, 426 F.3d at 872. The “one-year limitations period

established by § 2244(d) contains no explicit exemption for

petitions claiming actual innocence,” and we decline to add

one. Cousin, 310 F.3d at 849.3

[6] Our reluctance to add our own judge-made exception

to a statutory enumeration of exceptions accords with the

3

Indeed, it would be unconstitutional for us to do so, as federal courts

do not have inherent power to issue the writ of habeas corpus. Ex parte

Bollman, 4 Cranch 75, 94 (1807) (“[T]he power to award the writ by any

of the courts of the United States, must be given by written law.”); Schlup,

513 U.S. at 350 (Scalia, J., dissenting). 

9524 LEE v. LAMPERT
well-established interpretive canon of expressio unius est

exclusio alterius, that is, the express mention of one thing

excludes all others. As the Court recently remarked, while

refusing to create another exception to toll a different statute

of limitations when the statute at issue already included an

explicit exception, “[w]here Congress explicitly enumerates

certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a

contrary legislative intent.” TRW Inc. v. Andrews, 534 U.S.

19, 28 (2001) (quoting Andrus v. Glover Constr. Co., 446

U.S. 608, 616-617 (1980)); see United States v. Smith, 499

U.S. 160, 167 (1991) (“Congress’ express creation of these

two exceptions convinces us that the Ninth Circuit erred in

inferring a third exception . . . .”). That Congress created three

exceptions to the general rule that the limitations period

begins upon the conclusion of direct review indicates it did

not intend other exceptions, and there is no evidence to the contrary.4

[7] Our conclusion is buttressed by the explicit enumeration of an actual innocence exception in AEDPA a mere two

subsections above the statute of limitations section, section

2244(d)(1), in section 2244(b)(2)(B), which governs the filing

of second or successive habeas petitions. That section provides:

A claim presented in a second or successive

habeas corpus application under section 2254 that

was not presented in a prior application shall be dismissed unless . . . 

4

In fact, the inclusion of a diligence requirement for the discovery of

new facts in section 2244(d)(1)(D) would make adding an actual innocence exception inconsistent with the statutory scheme. A petitioner could

discover such facts and then, if they established actual innocence, hold

them until he felt the time was right, then availing himself of the actual

innocence exception and avoiding the diligence requirement. Chestang v.

Sisto, 2009 WL 2567860, *13 (E.D. Cal. Aug. 18, 2009). We decline to

make the diligence requirement superfluous. 

LEE v. LAMPERT 9525
(B)(i) the factual predicate for the claim could not

have been discovered previously through the exercise of due diligence; and 

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty

of the underlying offense.

28 U.S.C. § 2254(b)(2) (emphasis added). This provision

expressly creates an actual innocence exception to the bar

against second or successive habeas petitions.5 It is thus especially significant that section 2244(d)(1) does not include an

actual innocence exception, because “Congress clearly knew

how to provide such an escape hatch.” David, 318 F.3d at

347; see Flanders, 299 F.3d at 977 (emphasizing that “other

parts of AEDPA, enacted at the same time, do refer to this

doctrine” of actual innocence (citing 28 U.S.C.

§ 2244(b)(2)(B)(ii))). We interpret differences in statutory

text to be meaningful, as has the Court when interpreting

AEDPA’s statute of limitations. Lawrence v. Florida, 549

U.S. 327, 333 (2007) (interpreting § 2244(d)(2) differently

than § 2244(d)(1)(A) because “§ 2244(d)(1)(A) uses much

different language from § 2244(d)(2)”).6 In light of the

5This actual innocence exception tracks verbatim the test in Sawyer v.

Whitley, 505 U.S. 333, 336 (1992), the test that Schlup itself rejected.

Thus, Congress created an actual innocence exception but chose a more

restrictive standard. 

6

In Holland, the Court held that an inclusio unius est exclusio alterius

argument—that Congress specified statutory tolling in section 2244(d)(2)

but omitted equitable tolling in section 2244(d)(1)—was not enough to

overcome the rebuttable presumption in favor of equitable tolling. 2010

WL 2346549, at *11. As we have discussed, there is no such presumption

in favor of an actual innocence gateway that overcomes the wellrecognized strength of such textual canon. Moreover, the Holland Court

held that the rebuttable presumption outweighed the canon because there

9526 LEE v. LAMPERT
absence of a presumption in favor of an actual innocence

gateway, we believe the best reading of the statute is that it

does not include an unenumerated actual innocence gateway.

III

Lee responds to the State’s contention that his habeas petition is time-barred with five of his own arguments.

A

He first advances a different interpretation of the omission

of an “actual innocence” exception to the statute of limitations

despite its enumeration in a nearby subsection, based on his

view of the history of the actual innocence exception. Lee

argues that Congress enacted AEDPA’s statute of limitations

against the background of Schlup’s actual innocence gateway,

so that the omission of an actual innocence exception in section 2244(d) and the modification of such an exception in section 2244(b) indicate that an unmodified Schlup exception

applies to section 2244(d). The Schlup exception, in other

words, was a default that need not be mentioned. The Sixth

Circuit has advanced a similar argument. Souter, 395 F.3d at

590 n.5, 598. 

[8] But Lee gets his history wrong. The Schlup exception

never applied to federal statutes of limitations because

AEDPA created such limitations later. Schlup applied to second or successive habeas petition limitations, 513 U.S. at 301,

and state procedural requirements. Murray v. Carrier, 477

was an explanation for Congress’s specification of statutory tolling in section 2244(d)(2) and omission of equitable tolling, a different type of tolling, in section 2244(d)(1)—namely, that such specification was necessary

to explain the interaction between federal and state postconviction proceedings. Id. There is no such explanation regarding the specification of

an actual innocence exception in section 2244(b)(2)(B)(ii) and the omission of the same type of exception in section 2244(d)(1). 

LEE v. LAMPERT 9527
U.S. 478 (1986).7

 There was thus no preexisting actual innocence exception in the statute of limitations context for Congress to leave untouched. For Lee’s theory to hold water, we

would have to believe that Congress decided to rely on the

judiciary to create an extratextual exception to a brand-new

limitation on habeas relief never before considered by a federal court. We doubt Congress thinks we are mindreaders,

especially because Congress included three fairly standard

exceptions in the statute of limitations it created, not relying

on courts to read them in. 28 U.S.C. § 2244(d)(1)(B)-(D). In

any event, Lee’s historical speculation cannot override the

plain meaning of the statute.

B

Lee next responds that we should create an extratextual

actual innocence exception to AEDPA’s statute of limitations

because House v. Bell implemented such an extratextual

exception in the section 2254 state procedural default context.

Essentially, Lee argues that House continued to employ an

actual innocence exception despite silence in the habeas statute, so we should too.

But House did not do what Lee asks us to do. Lee misunderstands the relationship between AEDPA and the law governing state procedural defaults. That law is largely judgemade, though based loosely on section 2254(b). It has long

included a Schlup exception. In enacting AEDPA, Congress

did not change that law, as AEDPA did not substantively

amend section 2254(b).8 It thus left the law of state procedural

defaults untouched. The House Court recognized as much

7Prior to AEDPA, courts relied on a prejudice test for untimeliness. See

Ferguson, 321 F.3d at 822. 

8AEDPA obviously revised section 2254(b), but the changes were

largely cosmetic and organizational. Compare 28 U.S.C. § 2254(b) (2000),

with id. § 2254(b) (1994). 

9528 LEE v. LAMPERT
when deciding that AEDPA did not affect the Schlup inquiry

in the state procedural default context. 547 U.S. at 539.9

Thus, we confront a very different situation than the House

Court. House reaffirmed a judge-made exception in a judgemade area of law left untouched by AEDPA. Here, Congress

has since entered the field; we will not attempt to retake it.

C

Even if Lee were to concede and to point to House only as

an indication of the Court’s general willingness to deviate

from the text of habeas statutes, we think it inappropriate to

deviate here because we confront a Congress that knew of the

Schlup exception, but omitted it in section 2244(d). The same

awareness cannot be imputed to Congress for the state procedural default section enacted decades before. 

[9] House thus, at most, stands for the general principle

that courts may imply an exception when Congress is

unaware of it and has not legislated against it. Neither condition applies to section 2244(d) because at the time of its

enactment in AEDPA the Schlup exception was well-known

and AEDPA consciously picked and chose when to codify the

Schlup exception. In any event, such broad, purposive interpretation of precedent does not overcome the plain meaning

of the text.

9Specifically, the Court acknowledged that AEDPA’s section

2244(b)(2)(B)(ii) raised the Schlup standard to the Sawyer standard for

second or successive habeas petitions and that AEDPA’s section

2254(e)(2) established a Sawyer-like inquiry regarding the appropriateness

of evidentiary hearings. But, the Court was quick to distinguish, “[n]either

provision addresses the type of petition at issue here—a first federal

habeas petition seeking consideration of defaulted claims based on a

showing of actual innocence.” 547 U.S. at 539. 

LEE v. LAMPERT 9529
D

Lee further responds that it is inequitable to distinguish

between prisoners subject to federal as opposed to state statutes of limitations. That may be true, but it is not up to us to

revise the habeas statute to conform with our understanding

of equity. Congress distinguished between federal and state

statutes of limitations when it omitted a Schlup exception

from section 2244(d) without revising section 2254(b)(2). We

will not rewrite Congress’s handiwork.10

All told, Lee’s statutory responses are unpersuasive. We

will not override the plain meaning of the statute because of

policy concerns or erroneous and speculative interpretations

of AEDPA history and Supreme Court precedent.

E

Lee’s final response is that the court should extend the

actual innocence exception to the federal statute of limitations

to avoid serious constitutional concerns regarding the Suspension Clause. Souter, 395 F.3d at 601-02.

We have explicitly rejected the claim that AEDPA’s oneyear statute of limitations violates the Suspension Clause in

Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).

There, we rejected as time-barred the petition of a state prisoner who filed after the one-year AEDPA limit. Id.

11

10Nor is Lee’s purposive argument, regarding the nature of habeas corpus, persuasive. If AEDPA has a cognizable purpose, it “reflects Congress’ view that the courts were being too generous with habeas relief and

that the whole system needed to be tightened up.” David, 318 F.3d at 346

(citing H.R. Rep. No. 104-518, at 111 (1996) (“This title incorporates

reforms to curb the abuse of the statutory writ of habeas corpus.”)). 

11In Ferguson, we also rejected Lee’s argument that the difference

between the state and federal limits creates a trap for the unwary: “there

is no ‘trap’ ” because federal and state rights are different and there is no

reason to think that following the procedures for the latter will satisfy the

procedures for the former. 321 F.3d at 823. In such a case, a petitioner can

file a protective petition to protect his federal rights, as the Supreme Court

recently noted. Pace v. DiGugleilmo, 544 U.S. 408, 416 (2005). 

9530 LEE v. LAMPERT
“AEDPA’s one-year statute of limitations,” we reasoned,

“does not render federal habeas an inadequate or ineffective

remedy” to test the legality of a state prisoner’s detention. Id.

Rather, it “leaves petitioners with a reasonable opportunity to

have their federal claims heard.” Id.

12 After all, we noted, the

Supreme Court upheld AEDPA’s added restrictions on second

or successive habeas petitions. Id. at 822 (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).

[10] Nor does the absence of an actual innocence exception to the statute of limitations constitute a suspension. Lee’s

arguments were available to him immediately following his

conviction. He had “ample time” to bring his claim. David,

318 F.3d at 347. The absence of an actual innocence exception, therefore, does not make the writ inadequate or ineffective to test a detention.13 The First Circuit has come to a

similar conclusion: “the limitation is not even arguably

unconstitutional.” Id.

This conclusion is buttressed by the fact that the actual

innocence exception arises from the judiciary’s equitable discretion, not the Constitution. Murray v. Carrier, 477 U.S.

478, 496 (1986) (“Accordingly, we think that in an extraordinary case, where a constitutional violation has probably

resulted in the conviction of one who is actually innocent, a

12Ferguson remarked that the statute of limitations is not a “per se” violation of the Suspension Clause. It took that language from Green v.

White, 223 F.3d 1001, 1003 (9th Cir. 2000), the first case in our circuit to

uphold the statute of limitations against a Suspension Clause challenge.

Green emphasized that the AEDPA statute of limitations allows for consideration of individual circumstances, presumably through the exceptions

in sections 2244(d)(1)(B)-(D), which have the same effect as equitable

tolling doctrine. Such a feature is not compromised by the absence of an

actual innocence gateway. Thus, the “per se” language does not undermine

our conclusion. Rather, it emphasizes the importance of individualized

application of section 2244(d)(1)(B)-(D) to a particular petitioner. 

13This is especially true because of the exception for new evidence in

section 2244(d)(1)(C). David, 318 F.3d at 347. 

LEE v. LAMPERT 9531
federal habeas court may grant the writ even in the absence

of a showing of cause for the procedural default.”) (emphasis

added); Schlup, 513 U.S. at 314-17 (not mentioning constitutional concerns while formulating exception); id. 324-27 (not

mentioning constitutional concerns in holding that Sawyer

standard was too strict for actual innocence inquiry); House,

547 U.S. at 536-38 (not mentioning constitutional concerns

while formulating exception). We decline to rule otherwise

and instead follow Ferguson: AEDPA’s statute of limitations

without an actual innocence exception does not violate the

Suspension Clause. 

[11] Consequently, we conclude that there is no Schlup

actual innocence exception to override AEDPA’s statute of

limitations. Lee’s habeas petition is thus time-barred and must

be dismissed.

IV

We have previously refrained from deciding whether there

is an actual innocence exception that serves as a gateway

through the AEDPA statute of limitations to the merits of a

petitioner’s claims. Majoy, 296 F.3d 776-77. Instead, we have

assumed such an exception and have evaluated the actual

innocence claims themselves, waiting until a state prisoner

shows actual innocence to answer the legal question. Id.

14

But this is the minority approach. Four circuits have

decided the question in the manner we do today. Escamilla,

426 F.3d at 871-72 (Seventh Circuit); David, 318 F.3d at 347

(First Circuit); Cousin, 310 F.3d at 849 (Fifth Circuit); Flanders, 299 F.3d at 976-78 (Eighth Circuit). And, of course, the

Sixth Circuit necessarily reached the issue with contrary result

14Although Lee does not so argue, we are not constrained by the unreasoned dicta in Majoy that whether an actual innocence exception to the

statute of limitations exists “is not appropriately addressed by us in a

hypothetical context.” Majoy, 296 F.3d at 777. 

9532 LEE v. LAMPERT
in Souter, 395 F.3d at 585. Only two circuits have declined to

decide. Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1333-

34 (11th Cir. 2008); Doe v. Menefee, 391 F.3d 147, 161 (2d

Cir. 2004). 

We now resolve this question for our circuit for two reasons.

A

First, there is a widening split among the district courts of

our circuit on whether there is an actual innocence exception

to section 2244(d). Several district courts, including ones in

the Central District of California, the Northern District of California, and the District of Oregon, have held that “actual

innocence” overrides the statute of limitations. E.g., Lisker v.

Knowles, 463 F. Supp. 2d 1008, 1032-38 (C.D. Cal. 2006)

(Phillips, J.) (“[T]he Court concludes that AEDPA’s statute of

limitations must be tolled when an evidentiary showing demonstrates that its application would work a miscarriage of justice under Schlup.”); Larsen v. Adams, 642 F. Supp. 2d 1124,

1131 (C.D. Cal. 2009) (Snyder, J.) (holding that “a credible

actual innocence claim overcomes the statute of limitations

bar”); Nickerson v. Roe, 260 F. Supp. 2d 875, 890 (N.D. Cal.

2003) (Patel, C.J.) (adhering to previous order finding actual

innocence exception); O’Neal v. Lampert, 199 F. Supp. 2d

1064, 1066 (D. Or. 2002) (Aiken, J.) (finding “that creating

an ‘actual innocence’ exception to the habeas corpus statute

of limitations is a logical extension of [Schlup]”). 

Several other district courts, including some within the

Eastern District for California and the District of Oregon,

have held the opposite. E.g., Chestang v. Sisto, No. CIV S-07-

1173 (E.D. Cal. Sept. 30, 2009) (Karlton, J.), adopting in full,

2009 WL 2567860, *13 (E.D. Cal. Aug. 18, 2009) (“The

court is persuaded by the David rationale that claims of actual

innocence are required to be brought diligently the same as

any other claim.”); Souliotes v. Tilton, 2008 WL 782479, *8

LEE v. LAMPERT 9533
(E.D. Cal. Mar. 20, 2008) (Wanger, J.) (rejecting actual innocence argument and ruling that “petition for writ of habeas

corpus is barred by the statute of limitations”); Flemmer v.

Eckland, Civ. No. 99-598-HU, at 2 (D. Or. 2000) (King, J.)

(adopting magistrate judge’s recommendation that there is no

actual innocence exception to statute of limitations). 

This split creates troubling inconsistency. The rights of

state prisoners in Oregon depend on which judge hears their

cases. The rights of state prisoners in California depend on the

happenstance of the location of their state prison. Such chaos

calls out for our resolution.

B

Our second reason for resolving this question at this time

is that our district courts are expending vast amounts of

resources under the current approach of evaluating actual

innocence, on the assumption that an actual innocence exception exists. Each such evaluation requires the submission of

exhibits, oral argument, evidentiary hearings, and numerous

rulings, as the case before us demonstrates.15 Here, the district

court held several hearings and accepted numerous exhibits

over the course of proceedings lasting several months. Lee,

607 F. Supp. 2d at 1216; see Nickerson, 260 F. Supp. 2d at

889 (recounting four days of hearings over three months, two

hundred exhibits, and post-hearing briefing).

[12] A simple search, furthermore, demonstrates that every

district in our circuit has faced numerous cases like this, in

which they scrupulously evaluated actual innocence claims in

the context of a petition time-barred by the statute of limitations, on the assumption that an actual innocence exception

exists.16 The Central District of California, by itself, has

15Since the district courts are also assuming the Schlup as opposed to

Sawyer standard, they may also be expending extra resources due to the

difference between the two standards. 

16Unless otherwise noted, the courts in these cases assumed the existence of an actual innocence exception, then evaluated whether the peti9534 LEE v. LAMPERT
decided at least twenty-four cases in this manner between

March 4, 2008 and October 5, 2009, the date of argument in

this case.17 This massive expenditure of judicial resources has

tioner successfully established actual innocence, and then rejected his

petition after finding he did not meet his burden. In some cases, we have

noted in the parentheticals that district courts acted as if prior precedents

in their district did not exist, a further instance of chaos in this area of law.

Jelks v. Swenson, 2008 WL 4974420, *6+ (D. Haw. Nov. 21, 2008); Jardine v. Barrier, 2007 WL 2993918, *4 (D. Idaho Oct. 11, 2007); Weaver

v. Att’y Gen. of Mont., 597 F. Supp. 2d 1126, 1129 (D. Mont. 2008); Barron v. Neven, 2008 WL 5105262, *3 (D. Nev. Nov. 26, 2008); Hoisington

v. Williams, 2008 WL 4831699, *6 (E.D. Wash. Oct. 30, 2008); Sanford

v. Quinn, 2008 WL 803141, *1 (W.D. Wash. Mar. 24, 2008); Hedrick v.

Hall, 2007 WL 2463246, *5 (D. Or. Aug. 27, 2007) (evaluating actual

innocence without deciding exception, despite case law in the District of

Oregon finding exception); Hussey v. Blackletter, 2008 WL 2169528, *3

(D. Or. May 23, 2008) (evaluating actual innocence after finding exception); Lindley v. Schriro, 2007 WL 2320535, *1+ (D. Ariz. Aug. 10,

2007); Perez v. Evans, 2009 WL 2104853 (C.D. Cal. July 9, 2009)

(assessing actual innocence, declining to rule on exception, and not recognizing cases in Central District recognizing exception); Gerolaga v.

Kramer, 2009 WL 3627940, *5+ (E.D. Cal. Oct. 29, 2009) (assessing

actual innocence and not recognizing Eastern District precedent refusing

to find such an exception); Hamilton v. Gonzalez, 2009 WL 3517612, *5

(N.D. Cal. Oct. 26, 2009) (same); Brazil v. Curry, 2008 WL 3925161, *3

(S.D. Cal. Aug. 26, 2008). 

17We say “at least” because our word search was far from comprehensive. There may be more. Hurt v. Hedgpeth, 2009 WL 2767674, *2 (C.D.

Cal. Aug. 25, 2009); Moritz v. Dir. of Cal. Dep’t of Corr., 2009 WL

2821114, *2 (C.D. Cal. Aug. 25, 2009); Mendoza v. Adams, 2009 WL

2485728, *4 (C.D. Cal. Aug. 6, 2009); Tweedy v. Yates, 2009 WL

2190173, *2 (C.D. Cal. July 14, 2009); Johnson v. Martell, 2009 WL

2045985, *3 (C.D. Cal. July 6, 2009); Eager v. Hornbeak, 2009 WL

1810742, *4 (C.D. Cal. June 24, 2009); Lloyd v. Clay, 2009 WL 1309472,

*2 (C.D. Cal. May 8, 2009); Guerrero v. Clark, 2009 WL 1371225, *3

(C.D. Cal. May 7, 2009); Contreras v. Ollison, 2009 WL 910337, *3

(C.D. Cal. Mar. 31, 2009); Jones v. Felker, 2009 WL 762453, *3 (C.D.

Cal. Mar. 20, 2009); Burgers v. Almager, 2009 WL 737065, *4 (C.D. Cal.

Mar. 18, 2009); Lopez v. Clark, 2009 WL 648992, *3 (C.D. Cal. Mar. 6,

2009); Haney v. Dexter, 2009 WL 212423, *3 (C.D. Cal. Jan. 27, 2009);

Mitchell v. California, 2008 WL 4830721, *3 (C.D. Cal. Oct. 30, 2008);

LEE v. LAMPERT 9535
affected us at the circuit level as well, as a cursory search of

our cases demonstrates.18 All of these efforts are for naught if

there is no actual innocence exception to the statute of limitations. Since the text of the statute indicates there is not, the

federal courts in our circuit are needlessly burdened. We

decline to prolong the inevitable recognition that there is no

“actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

V

Accordingly,19 we REVERSE the judgment of the district

court and REMAND with instructions to DISMISS the

habeas petition as untimely.

Trevizo v. Knowles, 2008 WL 4501835, *2 (C.D. Cal. Oct. 2, 2008);

Padilla v. Tilton, 2008 WL 4195930, *3 (C.D. Cal. Sept. 9, 2008); Valenzuela v. Dexter, 2008 WL 4195937, *2 (C.D. Cal. Sept. 9, 2008); Arrellano

v. Curry, 2008 WL 2502147, *5 (C.D. Cal. June 20, 2008); Valdez v.

Clark, 2008 WL 2517152, *2 (C.D. Cal. June 20, 2008); Hudson v. Hall,

2008 WL 2338581, *3 (C.D. Cal. June 4, 2008); Bryant v. Yates, 2008 WL

1330097, *2 (C.D. Cal. Apr. 9, 2008); Vu v. Kramer, 2008 WL 1326687,

*2 (C.D. Cal. Apr. 4, 2008); Evans v. Hense, 2008 WL 937973, *4 (C.D.

Cal. Apr. 3, 2008); Henry v. Hernandez, 2008 WL 638370, *2 (C.D. Cal.

Mar. 4, 2008). 

18In all of these cases, our court inquired as to actual innocence on the

assumption that such an exception existed. E.g., Adams v. Harrison, 266

F. App’x 560 (9th Cir. 2008); Hartawan v. Gordon, 265 F. App’x 666 (9th

Cir. 2008); Hundley v. Roe, 135 F. App’x 55, 56 (9th Cir. 2005); Liang

v. Guirbino, 99 F. App’x 769, 770 (9th Cir. 2004); Tarver v. California,

115 F. App’x 339 (9th Cir. 2004); Fultcher v. Hatcher, 63 F. App’x 386

(9th Cir. 2003); Chaudhary v. Clarke, 79 F. App’x 952 (9th Cir. 2003);

Holiday v. Mueller, 51 F. App’x 636 (9th Cir. 2002); Mark v. Mueller, 52

F. App’x 884 (9th Cir. 2002); Smith v. Newland, 48 F. App’x 233 (9th Cir.

2002). 

19Because we decide this case on statute of limitations grounds, we need

not reach the state’s other arguments, including that the district court

refused to give AEDPA deference to the state court findings and that Lee

did not present any new evidence in the federal evidentiary hearing. 

9536 LEE v. LAMPERT
N.R. SMITH, Circuit Judge, concurring in the judgment:

The district court failed to accord the Oregon state courts

the deference due them under AEDPA. Under AEDPA, an

application for habeas corpus will not be granted unless the

adjudication of the claim (1) “resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States;” or (2) “resulted in a decision that

was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d). “[A] federal habeas court may not issue

the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.”

Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)) (internal quotation

marks omitted). “Rather, that application must be objectively

unreasonable.” Id. Applying this standard of review to the

decisions of the Oregon state courts, Lee has failed to demonstrate an entitlement to habeas relief. Therefore, I concur in

the judgment reversing the district court’s grant of Lee’s petition.

The district court failed to identify where the Oregon state

courts issued a decision that was contrary to clearly established Supreme Court precedent. The district court also failed

to identify an unreasonable determination of the facts in light

of the evidence before the Oregon state courts. Instead, the

district found that “AEDPA’s usual deferential standard for

reviewing state court findings is inapposite, at least when the

reliable new evidence casts doubt upon those findings.” Lee

v. Lampert, 607 F. Supp. 2d 1204, 1222 (D. Or. 2009). Such

finding was error. First, AEDPA prohibits the district court

from holding an evidentiary hearing in order to develop a

record for a determination on the merits, except in a few

express circumstances, none of which exist here. Second,

even if federal courts were allowed to consider this evidence,

LEE v. LAMPERT 9537
the district court’s analysis constitutes little more than a questioning of the reason and wisdom of duly appointed Oregon

jurors.

The district court failed to make a finding entitling it to

accept additional facts for a determination on the merits.

Under 28 U.S.C. § 2254(e), a state court determination of a

factual issue shall be presumed to be correct. The petitioner

has the burden of rebutting that presumption by clear and convincing evidence. Id. Furthermore, a federal court, reviewing

a state court conviction in a habeas proceeding, “shall not”

conduct a hearing to develop facts as to the merits of a habeas

claim, unless the petitioner shows that (a) his claim relies on

a new rule of retroactive constitutional law or “a factual predicate that could not have been previously discovered through

the exercise of due diligence,” and (b) “the facts underlying

the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the

underlying offense.” 28 U.S.C. § 2254(e).

Schlup does not constitute an amendment or an addition to

this statute. In Schlup, the Supreme Court determined whether

a showing of actual innocence excuses a procedural default

involving a second or successive petition. It did not address

the necessary showing for obtaining habeas relief on grounds

of actual innocence. See Schlup, 513 U.S. at 314. Thus, Schlup provides no authority guiding a court’s AEDPA determination of the merits of the petition. Further, Schlup should not

be read so as to amend the subsequent and clear Congressional language of AEDPA.

The district court discusses no new rule of retroactive constitutional law. The district court does not discuss how any of

this “new” evidence establishes, by clear and convincing evidence, the existence of a constitutional error resulting in Lee’s

conviction. There is no factual predicate that could not have

been previously discovered through an exercise of due dili9538 LEE v. LAMPERT
gence. Thus, the district court lacked the authority to supplement the record with facts not developed in the state court

proceedings. 

The district court granted Lee habeas relief on the grounds

of ineffective assistance of counsel. To grant such relief, a

reviewing court must determine “(1) whether the performance

of counsel was so deficient that he was not functioning as

‘counsel’ as guaranteed under the Sixth Amendment; and (2)

whether this deficient performance prejudiced the defendant

by depriving him of a fair trial.” United States v. Davis, 36

F.3d 1424, 1433 (9th Cir. 1994) (citing Strickland v. Washington, 466 U.S. 668, 691-92 (1984)). Without interacting

with the Oregon state courts’ findings, the federal district

court found that Lee had received ineffective assistance and

that he was prejudiced by such ineffective assistance. The district court based its prejudice finding on its conclusion that,

had the new evidence been presented to the jury, there is a

reasonable probability that the result of the proceeding would

have been different. Lee, 607 F. Supp. 2d at 1226. The district

court primarily relied upon two pieces of new evidence: (1)

expert testimony regarding the reliability of child witnesses

and a critique of the techniques used in this case; and (2) additional details regarding Robert Nachand and the police’s

investigation of Lee. Neither of these pieces of evidence truly

appears to be “new.” The jury had evidence before it, at the

time of rendering its verdict, that there existed a second

molester and that the victim was experiencing some confusion

between the second molester and Lee. Lee knew about the

unreliability of child testimony and was allowed to explore

through examination and argue in closing argument about the

victim’s confusion between Richard Lee and Robert Nachand.

Further, while an Oregon court may have appropriately

denied the request, it appears that Lee never even requested

to call an expert witness on his behalf to support an argument

that the victim’s testimony was unreliable. Lee’s later presentation of expert testimony to the federal district court does not

constitute new evidence; instead, it was further development

LEE v. LAMPERT 9539
of existing evidence. See Griffin v. Johnson, 350 F.3d 956,

962-63 (9th Cir. 2003). Thus, the evidence upon which the

district court relied in holding that the jury would have

changed its verdict, was before the jury. Here, the jury had

evidence of the victim’s confusion and the second molester

before rendering its verdict. We presume the jury to have considered the evidence before it when rendering a verdict.

Therefore, the district court erred in holding that Lee was

entitled to habeas relief on this ground.

It is not enough that the district court disagreed with the

findings of the Oregon state courts. “The question ‘is not

whether a federal court believes the state court’s determination’ under the Strickland standard ‘was incorrect but whether

that determination was unreasonable—a substantially higher

threshold.’ ” Knowles v. Mirzayance, ___ U.S. ___, 129 S. Ct.

1411, 1420 (2009) (quoting Schriro v. Landrigan, 510 U.S.

465, 473 (2007)). The court must identify a decision “that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States;” or “was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d). No other

finding will entitle Lee to habeas relief. Because the district

court failed to identify how Oregon’s denial of Lee’s claims

for relief violated one of these standards, I join in the judgment.

9540 LEE v. LAMPERT