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 A N I E L L A R S E

N , Petitioner-Appellee

,

v.

J O H N S O T O , Respondent-Appellant

. No. 10-56118

D.C. No. 2 :08-cv-04610-CAS-SS

OPI NI ON

A ppeal from the United States District Court for the Central District of California Christina A. Sny der, District J udg e, Presiding

Arg ued and Submitted J uly 30, 2013—Pasadena, California

F iled September 16, 2013

B efore: W illiam C. Canby

, J r., Stephen Reinhardt, and Kim McL ane W ardlaw, Circuit J udg es.

Opinion by

J udg e W ardlawL A R S E N V

. S O T O 2

SUMMARY *

Habeas Corpus

The p anel affirmed the district c ourt’s denial of a warden’s m o t i o n to dismiss a facially untimely 28 U .S.C. § 2 2 5 4 habeas corpus p etition based on a showing of actua l innocence.

After c oncluding that remand for considera t ion of the Supreme Court’s r ecent de c i s i o n in McQuiggin v. Perkins

, 133 S. Ct. 1924 (2013), was unnecessary because the district court already

undertook the analy sis that Perkins prescribes, and after rejecting the warden’s arg uments reg arding the credibility of petitioner’s evidence, the p anel held that petitioner satisfied the demanding standard of producing proof o f i nnocence sufficient to undermine a court’s confidence in his conviction.

COUNSEL

Stephanie C. B renan (arg ued), Deputy Attorn e y General; Xiomara Costello, Supervising Deputy Attorney Gene r a l ; Dane R. Gillette, Chief Assistant Attorney General; Kamala D

. Harris, Attorney General; Michael R. J ohnse n , S u p e r v ising D e p u t y A t t o r n e y G en e r a l ; R i c h a r d S

. Moskowitz

, Deputy Attorney General; and L ance E

. W inters, Senior Assistant Attorney General, L os Ang eles, California, for Respondent-Appellant.

* T h is su m m ary co n stitu

tes n o part o f th 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.L A R S E N V

. S O T O 3

J an Stig litz (arg

ued), Alissa B

jerkho el

, J ustin B rooks, a nd Alex a nder Simpson, California I nno c e n c e P r o j e c t , S a n D i e g o, California, for Petitioner-Appellee.

B enjamin G

. D amstedt and L ori R. Mason, Cooley L L P, Palo Alto, California; Scott A

. Cole, Cooley L L P, Reston, Virg inia, for Amicus Curiae.

OP INION

W A RDL AW , Circuit J udg e:

W a rden J ohn Soto appeals the denial of his motion to dismiss Daniel L arsen’s petition for a writ of habeas corpus. The district c ourt h eld that L a rse n ’s c laims could be considered on the merits d espite the f acial untimeliness of his petition, on the g round that L a rsen presented compelling evidence that h e is actually innocent. N otwithst anding the
one-y ear limitations period imposed o n the filing o f federal habeas petitions by the Antiterrorism and Effec tive Death Penalty A ct of 1996 (“AEDPA”), see 2 8 U.S.C. § 2244(d), a habeas petitioner who convincing ly demonst rates that he is innocent is entitled to prese n t h is claims for relief in federal
court. McQuiggin v. Perkins , 133 S. Ct. 1924, 1928 (2013). W e conclude that L arsen has made the r equisite showi n g o f innocence, and we affirm.

I.

A.

On the n i ght of J une 6, 1998, L os Ang eles police responded to a report of an assault w ith a deadly weapon withL A R S E N V

. S O T O 4

shots fired at the G o l d A p ple bar 1 in L os Ang e les’s San F ernando Valley

. T he suspect was identified as a man wearing a g reen flanne l shirt and his hair in a pony tail. L APD Officers Michael Rex and Thomas Townsend responded to the scene. According to the officers, t h e y approached the bar w ith their headlig hts and sirens turned off
to avoid alerting any possible suspects of their arrival. They
approa c h e d the bar throug h a back d riveway and turned on overhead floodlamps, side spotlig hts, and hig h beams.

Officer Townsend would later testify (at L ars e n ’s 1999 tria l ) t h a t h e and Officer Rex quickly noticed a man in the bar’s parking lot w h o matched the earlier description o f the

s u s p ec t. B oth officers w ould testify that the man pulled a linear object, about five o r six inches long

, f rom his waistband and threw it underneath a nearby car, and that this man, who wore a g

reen flannel shirt, was Daniel L a rsen.

That nig h t, after seeing the man in the parking lot, the officers ordered every

o ne in the p a

r kin g l o t t o g et down on their knees w ith their h ands o n their heads and detained a number of them in handcuffs. They placed L arsen in the back of a police car, and Office r To w n send then set out to search for the object that he t e stified L a rsen h ad thrown. Officer T ownsend f

ound a double-edg ed knife with a weig hte d handle and a fing er g uard u n derneath a pickup truck. He also found a copper cy linder ten to thirty feet from where L arsen had been standi n g, but in the opposite direction from where he said he had seen L arsen throw the object. Officer Rex also testified that the object L arsen threw was noticeabl y b i g g er

1 Vario u s p arts o f th e reco rd ref er to b o th th e “ Go ld A

p p le” an d “ Go ld en A p ple.” W e u se th e f

o rm er ap p ellatio n t h ro u g h o u t th i s o p in io n f or

co n sisten cy

.L A R S E N V

. S O T O 5

than the c opper bar. L arsen w as arrested at the scene. W h en Rex asked for his name, L arsen falsely replied that his name was “Anthony

Vant.”

L arsen was charg ed with possession of a deadly weapon under former California Penal Code § 1 2020(a) and convicted after a jury trial. 2 T h e p rosecution chose to c harg e the offense as a felony

. B ecause L arsen had several prior felony convictions, h e was sentenced to twenty -eig ht y ears to life imprisonment under California’s Three Strikes L aw. T he California Court of Appeal affirmed L arsen’s co nviction on direct review on J u ne 1, 2000, a n d the California Supreme Court denied review on Aug ust 9, 2000.

B.

I n May 2 0 0 5
, L arsen filed a habeas petition in L os Ang eles County Superior Court. H e arg ued tha t h e h ad received ineffective a ssistance of counsel at his trial because his defense attorney , who h as since been disbarred, failed to conduct an a dequate investig ation of his case, did n ot c all several potentially ex culpatory witnesses, failed to request that the knife be ex amined for fing erprints, and di d not present a theory o f

third-party

culpability

.

2 C a l i f o rn i a’ s Dead ly W eap o n s Reco d if icatio n A ct o f 2 0 10 reco d if ied th e pen al statu tes rel a t i n g t o th e co n tro l o f d ead ly w eap o n s w ith o u t

su b stan tiv e ch an g e. S

ee Cal. P en al Co d e § 16 0 0 5

. T h e sp ecif ic p ro v isio n

u n d er w h i ch L arsen w as ch arg ed is n o w co d if ied at Calif

o rn ia P en al Co d e § 2 1 3 1 0
, w

h ich p ro v id es th at “ an y perso n i n t h is s tate w h o carries

co n cealed u

p o n th e p erso n an y d irk o r d ag g er is pu n i sh ab l e b y im p riso n m en t in a co u n t y j a i l n o t ex ceed in g o n e y ear o r im p riso n m en t p u rsu an t to su

b d iv isio n (h ) o f Sectio n 1 17 0 .”L A R S E N V

. S O T O 6

L arsen attached thirteen e x hibits to his petition, including several decl a rations from individuals who witnessed the
events a t the bar who declared that L arsen was not the individual who threw the knife. F or ex ample, L arsen submitted a declaration from J ames McNutt, a retired Army Serg e ant F irst Class and f o rm er police chief. Mr. McNutt declared that he was in the p arking lot o f the bar with his wife

on the nig h t in question. Th e r e , he saw “a man nicknamed ‘B unker’” arg uing with Mr. McNutt’s stepson, Da n i el Harrison. When the police beg an to a rrive, Mr. McNutt “saw B unker reach into the waistband o f his pants. H e t o o k something out that loo k e d like a k nife. He threw it under a

car that was p a

rked to the left of my son’s car.” Mr. McNutt

saw another man, who h e later learned was L a rsen, being detained and “wonde r e d why he had b een arrested.” Mr. McNutt’s w ife, E linore, w ho a c c ompanied him that nig ht, also declared that she “observed Bu n k er reach into the waistband of his pants and remove and throw a shiny object. He threw it under a car that was parked to the left of my son’s car.” She specifically declared that “ Dan iel L arsen h ad nothing in his h ands, nor had h e made any movements at this time.” B oth McNutts stated that they did not believe L arsen did any thing on the nig ht in question that warranted his arrest. They had moved to North Caro l i n a and did not k now that L arsen had been tried or convicted for any crime.

L arsen submitted a

no t h er declaration from J orji Owen, the g irlfriend of a man named W illiam Hewitt, also known a s “B unker.” S h e d e c lared that a f ter the incident at the Gold Apple bar, “ Hewitt told me that L arsen had been arrested for possession of his ( Hewitt’s) knife, and that he (Hewitt) h ad tossed the knife under a t ruck when the police arrived a t the bar.” According to Owen, Hewitt sold his motorcy cle to bail L arsen out of jail “because the knife belong ed to him, h e wasL A R S E N V

. S O T O 7

the ind i v i dual who had thrown the knife when the police arrived, and he felt responsible f o r L a r s en being in jail.” L arsen also submitted a declaration from Hewitt h imself,

w h ich stated: “I know that the knife was not [ L ars e n ’s ]
, because it was mine.” Hewitt stated that he “did not testify in the trial in which Daniel L arsen was convicted, because no one subpoenaed me.”

L arsen raised similar claims in habeas petitions before the C a lifornia Court o f Appeal in March 2006 and before t h e Ca l i fo r n ia Supreme Court in May 2006. All three courts denied relief.

C.

L arsen f iled his f ederal h a b eas petition on J uly 1 5, 2008, and filed the operative F irst Amended Petition on October 27, 2008. His sole claim for relief is that h is trial counsel was unconstitutionally ineffective because he failed to locate, investig ate, and present ex culpatory witnesses or to present a third-party

culpability

theory to the jury

.

AEDPA ge n erally imposes a one-y ear p e riod o f limitations on a federal ha b e a s petition, commencing on the date when the challeng ed c onviction becomes final. 28 U.S.C. § 2244(d)(1)(A). I t i s u n disputed that L arsen’s federal p etition was f

iled in 2008, well over a y ear a f t e r h i s 1999 conviction became final. S ee Bowen v. R oe , 1 8 8 F .3d 1157, 1159 ( 9th Cir. 1999) (noting that a state court criminal judg ment is “ final” for purposes of collateral a ttac k a t the conclusion of review in the U nited States Supreme Court o r when the tim e f

o r seeking certiorari review ex pires). Althoug h the o ne-y ear limitation peri o d is tolled d uring the pendency of a proper state habeas petition, see 28 U

. S.C.L A R S E N V

. S O T O 8

§ 2244(d)(2), L arsen did not file his s t a t e petition until May 18, 2005. We have held “that sectio n 2 2 4 4 (d) does not permit the reinitiation of the limitations period that has ended before the state petition w as filed.” Ferguson v. Palmateer

, 321 F

. 3 d 820, 823 (9th Cir. 2003). Thus, it is clear that L arsen’s petition is facially untimely under § 2244(d).

However, the Supreme Court has long recog niz ed that in

a “narrow class of cases

. . . implicating a fundamental miscarriag e o f

justice,” Schlup v. Delo

, 513 U.S. 298, 314–15 (1995) (quoting McCleskey v

. Z ant , 499 U.S. 467, 494 (1991))

, f

e deral courts may hear the merits o f a h abeas petition despite an o t h e rwise applicable procedural bar. L arsen contends, and the d istrict court concluded, that h i s ineffective-assistance-of-counsel claim should be considered

on the merits despite its untimeliness because he is innocent. “[ P] risoners asserting innocence as a g at e way to defaulted claims must establish that, in lig ht of new evidence

, ‘ it is

more likely than not that no reasonable juror would have found petitioner g uilty bey ond a reaso n a b l e doubt.’” House

v. Bell

, 547 U .S. 5 18, 5 36–37 (2006) (quoting Schlup

, 513 U.S. at 327). I f L arsen satisfies this demanding standard, then he is entitled to have his fed e r a l claim heard on the merits notwithstand i n g t

h e statute of limitations prescribed b y § 2244(d). Perkins , 133 S. Ct. at 1932. 3

3 T h e W ard en

in itially arg u ed th at th e in n o cen ce ex cep tio n reco g n ized in S ch lu p w as n o t av ailab l e to ex cu se th e u n tim elin ess o f a f ed eral h ab eas p etitio n u n d er § 22 4 4 (d ). H o w ev er, in Perkin s th e Su p rem e Co u rt h eld

, as w e h ad p rev io u sly co n clu d ed in L ee v. L a mp ert , 6 5 3 F.3 d 9 2 9
, 9 3 2 (9 th Cir. 2 0 1 1 ) (en b an c), th at S ch lu p ’ s in n o cen ce ex cep tio n

to o rd in ary

ru les o f p ro ced u ral d ef au lt is ap p licab le “ w

h en th e i m

p e d i m en t is A EDP A ’ s statu te o f lim itatio n s.” 13 3 S. C t. at 1 9 3 2

. T h u s, th e W ard en ’ s arg u m en t th at n o s u c h e x c ep tio n to th e statu te o f lim itatio n s ex ists is f o reclo sed

.L A R S E N V

. S O T O 9

D.

Mag istrate J u dg e Suz anne H. Seg al held two evidentiary he ar i n gs r elated to L arsen’s petition, on May 1 9 a nd November 17, 2009. T he first hearing concerned the State’s motion to dismiss the petition, and thus focused sol el y on whether L arsen could make the showing of factual innocence required to e x cuse the time bar to consideration of the merits of his petition. L arsen called three w itnesses at the evidentiar y h e a r i n g : J a mes McNutt, Elinor McNutt, and B rian McCracken. He a lso submitted declarations from J orji Owen and W il l i a m H ewitt that he had submitted with his state habeas petition. S

ee supra p. 6.

J ames McNutt testified that he is a 22-y ear veteran of the military and a f

ormer police office r

. At the time of the hearing

, he was a correctional of f i c er in T ennessee. He testified that he was present in the parking lot of t he Gold Apple on the nig ht L arsen was arrested. H e and his wife

were meeting h is stepson, Danny ; he es timated they arrived
at 7:30, thoug h he was “not positive of t h e t i me.” After his wife heard “ a l o u d noise d own where Danny ’s car was parked, some arg uing g oing on,” Mr. McNutt went to investig ate the situation. Danny was arg uing with a m an whom he repeatedly referred to as “B unker,” and B unker was “doing all the talking .” L arsen was also present, but was not participating in the arg ument.

W ithin about two minutes, M r. McNutt observed “approx imately 20, 25 L APD t hat were coming from all different d irections.” McN u t t saw B unker throw a metallic object underneath a nearby vehicle; he stated that “ from [ his] professional ex perience” the object likely was not a g un, a nd he assumed it was a knife based on “the way i t s o undedL A R S E N V

. S O T O 10

underneath the vehicle.” I n contrast to B unker, L arsen “didn’t say one word

. . . . His h ands were at the side the whole time, a

nd he was just standing there, listening

. ” Subsequently

, a police of fi c er handcuffed and frisked McNutt, “massag ing ” his penis for about five or six seconds in the process. W h en t h e o f f i cers realiz ed that McNutt was affiliated with law enforcement, they released him.

Mr. McNutt witnessed L arsen’s a r rest. However, it was not until two and a half y e ars later 4 that an attorney contacted him about providing testimony o n L a rsen’s beh a l f

. Mr. McNutt w o u ld have testified on L arsen’s behalf, b ut the attorney never provided a specific time or place to g o to g ive his testimon y

. I f he had been called to testify at L arsen’s trial, his testimony would have been consistent with his statements at the evidentiary hearing

.

On cross-ex amination, Mr. McNutt testifi ed that he did
not notice any flood lig hts or hear a h e li c o p t er during the
events in the parking lot. H e never a c tually made it into the bar that n ig ht, and all the events he witness e d occurred around 7:30p.m., thoug h he w as “ n ot sure of the ex act time.” W h en as k e d

, he specifically stated that a copper w eig ht would not have made the sound he heard when B unker threw the object. H e also stated that he “ w as a nervous wreck, all these police officers and shotg uns and every thing ,” and that he felt the officers were rude and roug h.

4 T h e reco rd ref

le c t s t h a t a r o u n d th i s tim e, L arsen w as attem ptin g to

o b tain rep resen tatio n t o ch allen g e h i s co n v i ctio n

. T h o u g h h e h ad so m e f alse starts w ith

v ario u s atto rn ey s w

h o it ap p eared m ig h t tak e h is case, it

w as n o t u n t il af

t e r t h e Calif

o rn ia In n o cen ce P ro

j ect b eg an rep resen tin g L arsen in 2 00 2 th at h e p u rsu ed h ab eas relief

.L A R S E N V

. S O T O 11

E l i n ore McNutt b eg an her testimony by recounting th at she had had several back surg eri e s a n d suffered from

n europathy

, diabetes, and fibromy a lg ia; she indicated t h at these conditions would make it diffic u l t f or her to sit for a long period of time. She went with her husband to the Gold Apple bar on the nig h t in question to meet her son, but she could not remember what time they went. She “saw a couple of g uy s walking r ig ht up to [ h e r ] son’s car, kind of in a hurry ,” a nd she recog niz ed o ne of them as a man k nown b y the nickname B unker. L arsen was also present. Be c a u s e it appeared that “something [was] g oin g on,” her husband walked o v e r to where the confrontation was taking place while Mrs. McNutt waited at the tailg ate of her truck. B unker

ex c h a ng e d words with her son while L arsen stood by silently

. W i thin three or four minutes, the police arrived. W he n t h e police beg an to approach, Bu n k e r “ reached in his pants pocket o r shirt and tossed a knife under [ a] car” 5 near where he was standing

. Meanwhile, L arsen “just sto o d there, kind of, dumbfou n d e d

. Then turned and w alked away .” She testified that she could see him well and that she did not see any thing in his hands.

Althoug h she saw L arsen being placed in a patrol car, Mrs. McNutt d id not make inquiries because the officers were busy and “ were telling p eople to leave.” Had she known that the officers were arresting L ars e n for throwing the object under the car, she would have corrected their mis t a k e. However, the officers did not take a statement from her. She would have been willing to testify in L arsen’s defense at trial had she been asked to do so.

5 Mrs. McNu tt th en

co rrected h erself

, statin g : “ I d o n ’ t k

n o w if it w as a k n if e. I’ m j u st h earin g so m eth in g h it t h ro u g h

– a m etal, clan k , sk i d d in g , y o u k n o w , n o ise, b u t I d o n ’ t k

n ow w h at it w as.”L A R S E N V

. S O T O 12

On c ross-ex amination, Mrs. McNutt clarified that it was just b e g inni n g to g e t dark when she arrived at the bar; because it was J u n e , she estimated that would have been around 8:00. She thoug ht that they had g one into the bar for

one or two drinks after the police left, thoug h she “ [ couldn’t] be positive that far, long ag o”; in any event, she d id not “think [ they ] were t here a long time, b ecause [ her] husband
was, pretty , y ou know, upset.” She recall e d the parking lot being lit by street lig hts, but did not recall any flood l i gh ts from p olice cars or the presence of any helicopters. She also

saw tha t h e r h usband w as “ f ondled” b y a police officer, a nd could not believe what was happ e n i n g. She stated that an officer g rabbed her by the hair, b ut she did not complain throug h any official channels b ecause “it doesn’t do a lot o f
g ood to call L APD, f

rom what I heard.” She also testified that h er ey es were not on B unker or L arsen for the entire incident, because she “scanned” the a rea to see every

thing that was g oing on.

F inally

, L arsen called B rian McCracken to testify

. McCracken beg a

n by revealing that he was convicted o f conspiracy in 1990 and then in 1998 for being a f e l o n in possession o f a firearm. He h as not been arrested since 2001, and at the time of the hearing was employ ed making aircraft components. McCracken w as alone a t the Gold Apple bar on the nig ht in question. He knows Daniel L arsen, who was also
at the bar that nig ht. He reco u n ted that a man other than L arsen approached him in the bar; they ex chang ed words, a nd the man “ flashed a knife.” T h e man said, “You know, I could kill y o u rig ht n ow.” McCracken described the k nife a s double-edg e d and ab o u t four to five inches long

. I t h ad “something that c ould h ave c ome over y our thumb and index fing er”–“a hand protector.” He was then shown a photog raph of a knife that was found in L arsen’s trial counsel’s file, andL A R S E N V

. S O T O 13

testified that it “l o o ks pretty similar” to the knife he saw at the bar. He never saw Daniel L arsen w i t h a knife that evening

. Thoug h McCracken and the man with the knife

re solved their dispute without a n altercation, the bartender informed McCracken that she had called the police. H e was not in the parking lot when L arsen was arrested. McCracken testified that L a r s e n later called him from jail, and h e told L arsen, “I know y o u d i d n ’ t have the knife that n ig h t. Have
y our lawy er g et a hold of me.”

On cross-ex amination, when asked what the man with the knife looked like, McCracken stated that he wa s short with brown hair a

nd a medium build. After McCracken stated that he could not remember certain details about the man’s
appearance because t en y ears h ad e lapsed, he was asked whether “it would b e hard to a lso r e m e mber what the knife looked like”; he responded, “No, I r e m e m ber the blade distinctly because when somebody say s , y o u know: I could kill y ou rig ht now, and then they show y ou something

, that

one p artic u lar moment just stuck in my mind.” He h ad known L arsen for about fifteen y ears, but they were not close friends. L arsen presumably called him from jail o nly because L arsen was aware that McCracken would have known that L arsen d id not have the knife on the nig ht of the arrest. He admitted that he had not seen any one in the parking lot throw

an object and was not p r esent w hen the pol i c e a r r ived. McCracken thoug ht he may h ave h ad one beer b e fore seeing the knife, and had drunk o ne or two beers total that n ig ht. He waited to leave the bar until he was certain the p olice had left, and ultimately

left around 9:30.

B a sed on the evidence before her, Mag istrate J udg e Seg al recommended that the district c ourt deny the W arden’s motion to dismiss L arsen’s habeas p e tition as untimely

. SheL A R S E N V

. S O T O 14

concluded that, in lig h t of the evidence L arsen p resented, “ no

r easonable juror would have found Petitioner g uilty bey o n d

a reasonable dou b t.” T he district court a dopted that recommendation.

Mag istrate J u dg e Seg a l then held a second evidentiary hearing o n L arsen’s ineffective assistance of c o u n s el c laim. F inding that L a

rsen “clearly received ineffective assistance o f counsel” b e cause his trial counsel failed to present any evidence in L arsen’s defense, she r eco m m e n d ed that the district c ourt g rant the F irst Amended Petition and order the W a r den to release L arsen or ret r y h im within ninety day s. Over the State’s objections, the district court g ranted the F irst Amended Petition, remanding L arsen’s c ase for a new trial in
state court within ninety day s, unless the state decided not to retry him. The W arden appealed.

II.

W e review de novo the district court’s dec i sion to g rant

or deny a petition for a writ of hab e as c orpus. Lambert v

. Blodgett

, 393 F. 3 d 943, 964 ( 9th Cir. 2004). “F actual finding s and credibility d e t e r minations made b y the district
court in the contex t o f gr a nting or deny ing the petition a re reviewed for clear error.” Id. 6

6 W e rej ect th e W ard en ’ s s u g g estio n th at w e s h o u ld s o m eh o w rev iew th e d istrict co u rt’ s cred ib ility d eterm in atio n s d e n ov o

. W h ile it is tru e th at th e q u estio n w

h eth er L arse n h a s s a t isf ied t h e Sch lu p s tan d ard is a leg al
q u estio n th at w e rev iew d e n o v o , th at is a d istin c t i n q u iry f ro m th e q u estio n w

h eth e r th e w itn esses testif i ed cred ib ly to f

acts w ith in th eir k n o w l ed g e. T h e d istrict co u rt is en titled to d ef eren ce on th e l atter p o in t. S ee An d erso n v. C

ity o f Bessemer City
, 4 7 0 U .S. 5 6 4
, 5 7 5 (1 9 8 5 )

. T h e d istrict co u rt d eterm in ed “ th at th e McNu tts w ere cred ib le an d p ersu asiv e

w i t n esses” an d th at “ McCrack en also g av e cred ib le testim o n y .” T h eL A R S E N V

. S O T O 15

The Warden does not appeal the district c ourt’s g rant o f relief on the merits o f L a rsen ’ s i n effective assistance c laim. Nor d oes he p u rsue a claim that the evidentiary hearing s h eld before Mag istrate J udg e Seg al were improper under Cullen v

. P i nholster

, 131 S. Ct. 1388 (2011). The W ard e n h a s therefore waived those issues. S ee Trest v. Cain
, 522 U.S. 87, 89 (1997) (observing that a State can waive non-jurisdictional defenses in habeas proceeding s). Thus, the only issue before

us is whether the district court properly d enied the W arden’s motion to dismiss L arsen’s p etition as bey ond AEDPA’s limitation period.

III.

A.

As an initial matter, w e must determine the effect, if any , of the Supreme Court’s recent decision in Perkins on L arsen’s appeal. The Court held that “actual innocence, if proved, serves as a g ateway throug h wh ich a petitioner may pass” to present otherwise time-barred claims in federal court. 133 S. Ct. at 1928. The Court also “ clarifie[ d] that a federal habeas court, faced with an actual-innocence g ateway c laim, should count unjustifiable delay on a habeas petitioner’s part,

n o t as a n a bsolute b a

r rier to relief, but as a factor in determining whether actual innocence has b een reliably shown.” Id. Seiz i n g o n this lang uag e, the W arden urg es us to remand to the district court f o r reconsideration o f L arsen’s claim in lig ht o f Perkins

. H e a rg u e s that, because it did not have the benefit of the Court’s ruling at the time it considered L arsen’s petition, the d istrict c o urt ran afoul of Perkins b y

W ard en p ro v id es n o reas o n t o co n clu de th at th ese d eterm i n atio n s w ere clearly erro n eo u s, an d th u s w e leav e th em u n distu rb ed

.L A R S E N V

. S O T O 16

considering L arsen’s dilig ence “discretely ” and not as a factor
g oing to the credibility

of his new evidence. Cf. id. at 1936.

W e are not persuaded that remand is necessary

. W ere the district c ourt’s reasoning tainted by leg al error that prevented it from p roperly analy

z in g t h e question before it, remand would be p roper. See Johnson v. B ay A r ea Rapid Transit Dist.
, — F .3d —, 2013 W L 3888840 at *10 (9th Cir. J uly 30, 2013). B ut that is not the case here. Rather, the Report a nd Recommendation approved by the district court ex pres sly analy z ed whether L arsen’s d e l a y i n filing his federal h abeas petition undermined the c redibility of his new evidence, and concluded that it did not. The Mag istrate J udg e rejected the W a r den’s arg ument that L a

rsen’s a ctual innocence claim was not c re d i b l e because “no petitioner w ho is actually innocent would choose to remain silent a bout his federal habeas c laims f o r more than a y ear.” Even without the benefit of Perki n s , the Mag istrate J u dg e r ecog niz ed that a belate d a s s ertion o f innocence, coupled with new evidence, could undermine an actual innocence claim. However, she rejected that arg ument in L arsen’s case because he “did n ot re m a i n silent about his innocence.” The Mag istrate J u dg e found:

At trial, [ L arsen] pled not g uilty

. I n his declaration in support of his Petition, [ L arsen] stated that he asked h is t rial attorney to present ex culpatory evidence from Hewi t t, Owen, and others. W h en [L arsen] became

aware of the McNutts’ e x culpatory testimony

, he asked his trial attorney to move f o r a n e w trial a nd unequivocally stated, “I ’m innocent.”

[ L arsen] continued to ass e rt his innocence af t er his conviction. B etween his convictionL A R S E N V

. S O T O 17

i n 1999 and the start of the Califo r n i a I nnocence Project’s representation in 200 2
, [ L arsen] contacted nine different attorney s o r leg al org aniz atio n s for assistance in proving his innocence.

The Mag istrate J udg e also e v a l uated the witness testimony supporting L arsen’s evidence and found it credible:

Not only has [L arsen] consistently proclaimed h i s o w n i n nocence, but Petitioner’s supportin g witnesses have as well. The McNutt s , who
appear to have no other c onnection with [ L arsen]
, have testified credibly to [ L arsen] ’s inn ocence for approx imately eig ht y ears. I n statements made i n f

o r mally

, under o ath in a declaration, and under oath in live testimony befo r e t h e C o u rt, the McNutts have maintained a consistent version of events.

The d istrict court considered this reasoning and adopted the Mag istrate J udg e ’s conclusion that:

This appears to be one of the “ ext r aordinary

cases where the petit i o n er asserts his innocence and establishes that t h e court cannot have confidence in the contrary finding of g uilt.” Johnson[ v. Knowles]

, 5 41 F .3d [ 933,] 937 [ (9th Cir. 2008)]

. Contrary to the W a

r den’ s a rg ument, the analy sis in the R e p ort and Recommendation demonstrates that dilig en c e w a s not considered “only discretely

. ” The Mag istrate J udg e made finding s upon which she and the district court concluded thatL A R S E N V

. S O T O 18

L arsen’s delay in filing did n ot show t h a t h i s evidence was unreliable, but was rather ex plained b y his defense attorney ’s failures a nd his subsequent att empts to acquire appropriate leg al representation. The Mag istrate J u dg e then concl u d e d that L arsen’s evidence wa s r eliable because it h a s remained

s ubstantively consistent f or over a decade. This is per f ec t l y consistent with the Court’s teachin g i n Perkins that

“ [u] nexplained delay in presenting new evidence bears on the determination whether the petitioner has made the requisite showing

. ” 133 S. Ct. at 1935 (emphasis added). I n short, it is simp l y implausible that Perkins would alter the district court’s c onclusions about t h e c r e d i bility of L arsen’s evidence, because the d istrict c o urt already undertook the precise analy sis that Perkins prescribes.

B.

Alternatively

, the W arden urg e s u s to independently conclude, on the basis of Perkins

, that L a rsen’s delay in filing

a federal habeas petition d iminishes th e credibility of his “new” e v i d e n c e. He contends that L arsen has failed to

ex p lain why he delay ed from his conviction in 1999 until his first state habeas petition in 2005 to present his new evidence. W e disag ree.

F irst, the evidence is not r eally new. As discussed supra , L arsen’s f

ederal h a b e as petition was the culmination of his unbroken efforts over many y ears t o p rove his innocence using e videnc e h e knew could ex o nerate him but which his attorney incompetently failed to present at trial. Second, the W a r den stretches th e r e c o rd by claiming that, by 1 999 o r 200 0
, L arsen had a ll the information he needed ( and all the leg al assistance required) to collaterally a ttack his conviction

on the basis of actual innoc e n ce

. The W arden notes thatL A R S E N V

. S O T O 19

L arsen averred in a d eclaration submi t t e d to the California Supreme Court that he was aware o f the McNutts “after [ his] conviction but before [ h e] w as sentenced.” He also points out that in h is F irst Amended Pe t i t ion in federal court, L arsen stated that the McNutts g ave a w ritten statement to L arsen’s
g irlfriend “dated September 21, 2001.” F urther, the W arden
not e s that L arsen declared before the California Supreme Court that he “had eng ag ed a civil attorney

. . . to h e lp [ him]
prove [ his] innocence” as of September 2000, and that the civil attorney helped h im find another attorney named Charles L inder to “writ e [ his] habeas petition.” Given L arsen’s

awar eness of ex culpatory w itnesses and the fact that he h ad the a ssistance of counsel during the relevant period, the W a r den c o n t e n d s that L arsen should have presented his evidence o f innocence e arlier than 2005 and has not

ex p lained his failure to do so.

This arg ument is unava i l i n g. F irst, as the W arden acknowledg es, L inder only ag reed to prepare L arsen’s h abeas petition “in ex c hang e f

or five percent o f the proceeds of [ his] civil case” ag ainst the State, and then a bandoned him after “a California Supreme Court case c ame down that m ade it impossible for us to win a civil suit until after [ L arsen’s] innocence was proven in an evidentiary hearing .” Thus, it is

ex tremely misleading for the Warden to sug g e s t the record shows L a

rsen “had c o u nsel h elping him to p r o v e h is innocence as early as 2000” b e c ause of his retention o f L i nder. Second, as the Mag istrate J udg e found, L arsen contacted nu

m e r o u s l e g al org aniz ations b etween 1 999 and the
start of the California I nnocence Proj e ct’s representation in 2002. That it took L arsen seve ral y ears to find attorney s to properly develop and present his claims does not undermine the credibility

of his evidence.L A R S E N V

. S O T O 20

Nex t, the W a

rden arg ues that L arsen has not ex p lained why it took the California I nnocence Project three y ears from 2002 (w h e n it beg an representing him) until 2005 to file his habeas petition. The W arden sug g ests that L arsen’s “timing i s all the more suspect because he waited to present h i s evidence of a third-party perpetrator

. . . until a fter the statute of limitations ex pired for prosecuting that person for carry ing

a concealed weapon.” Th e se arg uments are likewise unpersuasive. F irst, it is inex plicable that L arsen would have willing ly allowed the limitations p eriod on his o w n h abeas petition to ex pire while he remained incarcerated in order to spare W illiam Hewitt from c h a r ge s o f carry

ing a concealed
weapon, a

nd the W arde n d o e s n ot even attempt to offer an

ex p lanation. W hen L arsen f iled h is state petition in 2005, Lee and Perkins h a d not been decided, so a choice to delay filing the petition carried the strong likelihood that fed e ra l law could have developed to bar u ntimely f iling s n otwithstanding

a credible claim of actual innocence. Fu rthermore, three
y ears to locate witnesses scattered across the country , g ather declarations, a

nd f ile L a rsen’s petition i s not so leng thy a time as to be unreasonable. Certainly

, that his attorney s were thoroug h in preparing his petition does n o t undermine the reliability o f L a

rsen’s evidence. And at any rate, the W arden has not ex plained why the California I nnocence Project

wo uld choose to become complicit in L arsen’s supposed scheme to spare Hewitt from prosecution by delay ing in filing the petition.

Most importantly

, the W arden has not ex plained h ow any delay in filing by L a

r sen has prejudiced the St ate o r benefitted L arsen. I n fact, as L arsen’s counsel pointed out at oral arg ument, even the W a rden ’ s own arg ument sug g ests that L arsen is in f

a c t innocent: if L arsen delay ed filing his petition to protect H ewitt, then H ewitt (and not L arsen) mustL A R S E N V

. S O T O 21

in fact be the g

uilty party

. None of the W arden’s arg uments in a n y way diminish the credibility of L arsen’s e vidence. F o r

ex a mple, the W ard e n h as not a rg ued that any prosecution wi t n e sses w ho testified at L arsen’s trial have since died o r become unavailable. Cf. P e r k i n s , 133 S. Ct. at 1936. I n essence, the W arden’s position amounts to an arg ument that delay is a per se indication that L arsen’s evidence is not credible. That is a close cousin of the arg ument the State o f Mi c h i g an advanced in Perkins that petitioners claiming actual i n nocence should be subjected to a “threshold dilig e n c e requirement”—an arg ument th e S upreme Court concluded “makes scant sense.” I

d . at 1935.

I n short, delay i s r e l e v ant if it is “[ u] nex plained” o r “unjustified,” id.

, and if it “bear[ s] on the probable reliability of [ the petitioner’s] evidence,” Schlup

, 5 1 3 U

. S

. at 332. L arsen’s alleg ed “ d e l ay ” is ex plained and readily understandable, and the W arden presents no plausible reason why his late filing detracts from the c r e d i b i lity o f his witnesses, who have never deviated f rom their description o f
events on J une 6 at the Gold Apple bar. The Mag istrate J udg e who oversaw the evidentiary hearing s in the district
court concluded just the opposite, finding that L ar s e n ’s consistent and dog g ed attempts to prove his i n n o c ence a nd the consistency o f h i s witnesses’ testimony over a period o f
y ears bolstered the reliability of his innocence claim. These finding s are not clearly errone o us, and nothing in Perkins points to a different conclusion. W e thus turn to the question whether L arsen’s n ew evidence of inno c e n c e is e noug h to permit consideration of his federal claim on the merits.L A R S E N V

. S O T O 22

IV.

A.

To present otherwise time-barred c laims in federal court,

a p e t itioner must p roduce proof of his innocence that is sufficient to convince a federal court that a failure to entertain his claim would constitute a f u ndamental m i s carriag e o f justice. Lee
, 65 3 F

. 3d at 9 37–38. This “fundamental miscarriag e of justice” doctr i n e has been described as “a
g ateway throug h which a habeas petitioner must pass to have his o t h erwise b arred constitutional claim considered on the merits.” Herrera v. Collins , 506 U.S. 390, 404 (1993).

“To pass throug h the S

c h lup g ateway , a ‘petitioner must show that it i s m o r e likely than n ot that no reasonable juror would have convicted h im in the lig ht of the new evidence.’” Lee
, 653 F .3d at 938 ( quoting S c h lup

, 513 U.S. at 327). “This

ex a c ting standard ‘permits review only in the ‘ex traordinary ’ case,’ but it ‘does not require absolute c e r t a inty about the petitioner’s g u ilt or innocence.’ Id. (quoting H ouse , 5 47 U.S.
at 5 38). “To be c redible, such a cl a i m r e q u ires petitioner to support his alleg ations of constitutional error wit h new reliable e vidence—whether it be ex culpatory scientific evidence, trustworthy ey ewitness ac c o u n ts, or critical phy sical evidence—that was not presented at trial.” Schlup

, 513 U .S. at 324. W e have held t h a t “ where post-conviction evidence casts doubt on the co nviction by u ndercutting the reliability o f t h e proof of g u ilt, but not by affirmatively proving innocence, that can be enoug h to pass thr o u gh t he Schlup g ateway to allow c onsideration of otherwise b a rr ed claims.” Sistrunk v. Armenakis , 292 F .3d 669, 673 (9th Cir. 2002) (en banc) (citing Carriger v. S tewart , 1 32 F .3d 463, 478–79 (9th Cir. 1997) (en banc)).L A R S E N V

. S O T O 23

The Schlup standard “is demanding ,” Perkins

, 1 33 S. Ct.
at 1936, and precedents holding that a habea s p etitioner satisfied its strictures have ty pically invo l v ed dramatic new evidence of innocence. I n H ouse , for instance, DNA

e vidence established that semen found on a murder vic t i m

came from t h e v i ctim’s husband and not from H ouse, see 547 U.S. a t 540–41, and there was evidence that the husband had a history of violence toward his wife, raising an inference
t h at he “could h ave been the murderer,” id. at 5 4 8

. I n Carriger
, the prosecution’s chief trial witness had confessed in open court that he himse l f ( a n d not Carrig er) h ad committed the murder f

or which Carrig er had been convicted. S e e 132 F .3d at 471–72. I n contrast, we have denied access to the S chlu p ga teway where a petitioner’s evidence o f innocence w as mere l y cumulative or speculative or was insufficient to overcome otherwise convincing proof of g uilt. See
, e.g. , Lee
, 653 F .3d at 943–46; S i s trunk

, 292 F .3d at 675–77. Thus, to satisfy Schlup

, the p et itioner’s new evidence must c onvincing ly undermine the State’ s c ase. However, definitive, affirmative proof of innocence is not strictly required. As we ex plained in Ca r r i g er , a Schlup claim “is procedural, not substantive”: a petitioner’s new evidence must be sufficien t t o undermine a court’s confidence in his conviction, but not to erase any possibility of g u ilt. 132 F .3d at 478.

B.

L arsen has satisfied this demanding standard. None o f the W a r den’s arg umen ts can overcome the simple, crucial fact that L arsen produced witnesses who were never c a l l e d to speak on his behalf at his tri al and who g ave credible testimony that someone other than L a rsen committed the acts for which he was convicted and sentenced, wh i l e L arsenL A R S E N V

. S O T O 24

stood nearby and did nothing a t all, much less a criminal act. L arsen ’s c laim of innocence lies at the core of the “miscarriag e o f justice” doctri n e : it g enerates “ sufficient do u b t a b out the validity of his conviction to satisfy Schlup and permit consideration of his constitutional c laims.” I d. W e conclude that it is more likely than not that no reasonable juror hearing al l of the evidence L arsen presented in federal
court would vote to convict him u n d e r t he bey ond-areasonable-doubt standard.

The W arden f

ails to offer any contradictory evidence

. He

mere l y o f fers several different arg uments in a weak attempt to show that L arsen has not met his burden. F irst, he claims that the Mag istrate J udg e misappl i e d the a pplicable leg al standards b y resting h e r re c o mmendation on her o wn

su b j e ctive lack of confidence in the verdict, rather than an objective determination of what a reasonable jury would do
g iven the newly supplanted record. I n S c h l u p , the Supreme C o u rt observed that “[ i] t is not the d istrict court’s independent judg ment as to whether reasonable doubt ex ists that the standard addresses; r ather the s t a n dard requires the district court to make a probabilist ic determination about what reasonable, prop e rly instructed jurors would do.” 513 U.S. at 3 2 9

. However, the Mag istrate J u dg e made an objective determination when she c oncluded t h a t , “had the jury been able to consider” the evidence pres e n t ed at the evidentiary hearing

, “‘no r easonable juror would h ave f ound Petitioner g uilty

bey ond a reasonable doubt.”

That the Mag istrate J udg e also referenced her own lack o f confidence in the verdict does not render her analy sis leg ally

erroneous. I ndeed, th i s same lang u ag e has been employ ed both by the Supreme Court and by us in describing the Schlup standard. See
, e.g. , Schlup

, 513 U.S. at 316 (“However, if aL A R S E N V

. S O T O 25

petitioner such as Schlup presents evidence of innocence so strong that a court cannot have c onfidence in the outcome of the trial unless the court is a lso satisfied that the trial was free of nonharmless c onstitutional error, the petitioner should be allowed to pass throug h the g ateway and arg ue the merits o f his underly ing claims.” (emphasis added)); accord Ma j o y v

. Roe
, 296 F .3d 770, 775–76 (9th Cir. 2002). This “confidence in the outcome” formulation is simply another w ay o f describing S

chlup ’s “no reasonable juror” standard, and o ne that courts h ave used for dec ad e s

. Certainly

, it was not reversible error for the district court to employ lang uag e that h a s been endorsed both by the Supreme Court a nd by o u r court.

Nex t, the W arden arg ues that L arsen has failed to satisfy Schlup b ecause nothing in the evidentiary hearing testimony is incompatible w ith his conviction. Thi s a r gu m ent by the W a r den appears to have evolved over the life of his appeal. I n his opening brief, the Warden arg ued t h a t the McNutts
may have b een relating a completely separate incident from that discussed by the police officers in their trial testimony

. F or instance, while the McNutts testified that the events they witnessed occurred a

round 7:30 or 8:00 p.m., Office r Rex testified at trial t h a t L a r sen was arrested at 12:30 a.m. The W a r den contends that it “ strains credulity ” to think that a middle-ag ed couple wo u l d m e et their adult son at a bar that late at n ig ht. Coupled with the fact that the McNutts did not recall seeing flood lig hts or helicopters, the W arden contends, the McNutts’ testimony about the time sug g ests that they may not have been present at all for the events in question.

I t is the Warden’s a

rg ument here that “strains c redulity

. ” B o th McNutts testified that while they were at the Gold Apple bar, they witnessed an alt e r cation in the parking lot,L A R S E N V

. S O T O 26

that numerous police officers thereafter a rrived on the scene, that someone threw a metallic object under a nearby car, a nd that Daniel L a

rsen was placed in the back of a patrol car. F o r the McNutts to have wit n e s s ed a separate incident, a ll o f these occurrences would have had to repeat themselves wit h i n

a period of a few hours at the same e x act location; indeed, thi s v e r s i on of events would require L arsen to have been arrested twice on the same day at the same bar. I t is far more likely that the McNutts witnessed the same incident d iscussed at L arsen’s trial. B oth McNutts e x pressed uncertainty about the time of nig ht in their testimony

, and did not purport to be defi nitive about the time of the incident. Similarly

, they stated that they did not recall hea ring h elicopters o r seeing f l o o d lig hts, but as the Mag istrate J udg e noted, that “[ t] h e McNutts, eleven y ears later, d id not remember what lig hts they saw or what sirens th e y heard” constituted “minor discrepancies that d o not cast doubt o n t h e M c N utts’ clear and consistent memories of seeing B un k e r , not Petitioner, throw the object.”

I n his post- Perkins supplemental brief, t h e Wa r d e n a r g u ed that the evidentiary hearing testimony is not inconsistent with L arsen’s conviction because n one of his witnesses actually testified that the y s a w H e w itt throw a knife. I t is true that while both McNutts testified that Hewitt thr ew a metallic objec t under a car in the parking lot, neither testified with certainty that the object was a knife. However, both McNutts testified that L arsen had noth i ng in his hands and d id not throw any ob

j e c t , w hile H ewitt did throw an object that Mr. McNutt specifically said could not have been a c o p p e r weig ht—the only other o bjec t found in the parking lot that nig ht. The W arden f urther points to Mrs. McNutt’s admission that she “looked at every direction, like what was
go i n g on,” when the police arrived at the scene, and argu e sL A R S E N V

. S O T O 27

that a reasonable juror could have in ferred that Mr. McNutt

was p robably not pay ing much attention to L arsen during the commotion. B ut that it may h ave been phy sically possible for L arsen to throw a knife during a split second when neither o f the McNutts was pay ing a t t ention d oes not defeat L arsen’s Schlup claim. Rather, that multiple c redible witnesses saw a different person take the same actions that L a rsen was accused of taking —throwing a metallic object under a nearby
car—sug g ests that the police were mistaken about the identity

o f the person who threw the knife. N o reasonable ju r o r

co n f r o nted with such evidence would be convinced bey ond a reasonable doubt of L a

rsen’s g uilt. 7

The W arden also arg ues that McCracken’s admission that he was previously c onvicted o f felonies would have undermined his c redibility i n t h e ey es of the jury

, especially in comparison to the p olice officers who t e s t i f ied for the prosecution. Even assuming that McC ra c k en’s convictions
sug g est that he is g enerally dishonest, the testimony o f individuals who have been convicted of felony offenses is not alway s to b e disbelieved. McCracken’s testimony is to be viewed not only in lig ht o f the c o ntradictory testimony of the police offers, but also in l ig ht of the clear testimony o f the

7 T h e W ard en also arg u es th at th e McNu tts m ay h av e b een b i ased

, eith er ag ain st th e L A P D (b ecau se o f certain o f f icers’ alleg ed m istreatm en t o f th e McNu tts at th e s cen e) or ag ain st Hew i tt (w h o m th ey testif

ied w as actin g in a h o stile m an n er to w ard t h eir so n ). Bu t as t

h e Mag istrate J u d g e f

o u n d

, a reaso n ab le j u ro r w o u ld b e m u c h m o re lik ely to co n clu d e th at a f o rm er law en f o rcem en t o ffi cial an d m ilitary v eteran an d a w o m an w i th d eg en erativ e h ealth p ro b lem s w o u ld n o t sp en d a d ecad e co n sisten tly
p ro v id in g ex cu lp ato ry testim o n y o n b eh a l f o f so m eo n e w ith w h om th ey lack ed an y m ean in g f

u l p erso n al t ies, cu lm i n atin g w ith a cro ss- co u n try trip
to testif y at th e ev id en tiary h earin g , in ord er to retaliate ag ain st B u n k er or th e L A P D f

o r a d ecad e- o ld slig h t.L A R S E N V

. S O T O 28

McNutts and, to a lesser ex tent, the declarations of J orji Owen and W illiam Hewitt. Moreover, the W arden does not

o f fer a ny reason why McCracken w ould risk c rimi n al
consequences by perjur ing himself for L arsen’s benefit. I ndeed, McCracken g a ve unco n t r a d icted testimony that he was not a close friend of L arsen’s.

The W arden al s o arg u es that “none of the evidence presented at the federal evidentiary hearing ad e q uately
accounts f

o r t h e fact that Petitioner, w hen arrested at the
scene, g ave the polic e a false name.” B ut bey ond a perfunctory reference to the n otion that “a truly innocent man would have h ad no reason to lie to police about his identity

, ” the W ard e n d o e s n ot ex plain why this false statement undermines a

ny of the newly presented evidence of innocence ad d uced at the evidentiary hearing

. E ven if L arsen’s use o f

a pseudony

m sug g ests consciousness o f g uilt in some g eneral
sense, it cannot independently support a finding of g u ilt bey ond a reasonable doubt for the spec i f ic crime of which L arsen was convicted. Moreover, it is undisputed that L arsen had prior convictions, and he may have had an y n u m b e r o f

reasons to try to avoid providing hi s true identity to the police. These mig ht include averting a rrest for a crime he did not commit.

F inally

, the W arden arg ues that none of L arsen’s new evidence undermines the trial testimony of Officers Rex a nd Townsend, w h o identified L arsen as the man who threw the knife. Howev e r , despite the Warden’s repeated arg uments that a “ swearing match” between p rosecutio n and defense wit n e s ses is insufficient to satisfy Schlup

, it never meaning fully ex plains how a jury faced with evidenc e f r o m five different witnesses that a d ifferent person threw the knife could n o netheless have concluded that L arsen was g uiltyL A R S E N V

. S O T O 29

bey ond a reasonable doubt. I f the fact t h a t prosecution witnesses te s t ified ag ainst the defendant at trial were sufficient to d efeat any actual i n n o cence claim, the Schlup doctrine would be meaning less.

I ndeed, S chlup itself is to the c ontrary

. I n that case, two

cor r e c tions officers, F lowers and May lee, testified that Schlup w as involved in a jailhouse murder. S e e S c hlup

, 513 U.S. at 302 (“The State p r oduced no phy sical evidence connecting S c h l u p to the killing

, and no witness o ther than F lowers and May lee testified to Schlup’s involvement in the murder.”). L ike L arsen’s, “Sch lup’s d efense was that the State h ad the wrong man.” Id. at 3 03. The district court h ad “concluded that the affidavits p resented b y Schlup,” in which prisoners who h ad w i t nessed the crime contradicted the officers, “when considered ag ainst the posit i v e identifications made by Flowers and May lee, failed to constitute a

s u f f i ciently persuasive showing of actual innocence.” Id. a t 309 n.19. The Supreme Court disag reed and r e m an d ed for further proceeding s, ex pressly holding t h a t a “petitioner’s showing of innocence is not insuffic i e n t solely because the trial record contained sufficient evidence to support the jury ’s verdict.” I

d. at 331. L ikewi s e , L arsen’s “post-conviction evidence casts doubt on the convic tion by u ndercutting the reliability of th e proof o f g uilt,” even if it does not “affirmatively prov[ e] innocence”; “that can b e enoug h to pass throug h the Schlup g ateway to allow c onsi d e ration o f otherwise barred claims.” Si s trunk

, 292 F

. 3d at 673. L arsen’s evidence more than suffices.

The district court already held that L arsen’s conviction is constitutionally untenable because he received ineffective assistance of counsel at trial, and t h e W a r d en has not appealed that ruling

. Rather, the W arden has arg ued only thatL A R S E N V

. S O T O 30

L arsen’s h abeas petition should not have been considered at all b e cause it was untimely

. B ecause we hol d o t h e rwise, L arsen is entitled to the writ of habeas corpus entered by the district court.

V.

W h en a state prisoner c halleng es his conviction in federal court, we m u s t b e “ careful to limit the scope of federal intrusion into state criminal adjudications and to safeg uard the Sta t es’ interest in the integ rity of their criminal a nd coll a t e ral proceeding s.” W illiams v. Taylor

, 529 U.S. 420, 436 (2000). Cong ress p assed AEDPA, including its string ent statute-of-limitations provision, to “further [ these] principles of comity , finality , and federalism.” Id.

However, as the Supre m e C ourt h as repeatedly
recog niz ed, “in appropriate cases [ these] principles of comity and finalit y

. . . m ust y ield to the imperative of correcting a fundamentally unjust incarceration.” Murr a y v. Carrier
, 477 U .S. 478, 4 95 (1986) (internal quotation marks omitted). This is such a case. B ecause we conclude that L arsen has met the demanding Schlup sta n d a r d

, we must ex ercise the “‘equitable discretion ’ o f habeas courts to see that federal constitutional errors do not result in the incarceration o f innocent pe r sons.” Herrera
, 506 U.S. a t 404 (quoting McCleskey , 499 U.S. at 502).

AF F IRMED.