NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK A. HANSON,

Petitioner

- Appellee,

v. RENEE BAKER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA, Respondents

- Appellants. No. 18

- 15547
D.C. No. 3:04

- cv - 00130

- MMD

- VPC

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Miranda M. Du, District Judge, Presiding Argued and Submitted February 14, 2019 San Francisco, California Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges. Renee Baker, Warden, and the Attorney General for the State of Nevada (collectively, “the State”) appe al the district court’s judgment granting Mark Hanson’s habeas corpus petition under 28 U.S.C. § 2254. 1

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

1 In addition to the appeal, two motions are pending

. The State’s motion for leave to file an oversized brief is GRANTED . Hanson’s request to file a sur

reply is DENIED

. 

# FILED

MAR 25 2019 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

On January 18, 1998, Tamara Smart

— Hanson’s 20

- month old step

daughter

— suffered a severe head injury while in Hanson’s care. Tamara died from
her injuries the next day.
Hanson was convicted of first

- degree murder by child abuse for Tamara’s
death. At trial, Hanson contended that a fall from the front porch of the family’s mobile home in Elko, Nevada, caused Tamara’s injuries. The prosecution argued
that physical abuse caused Tamara’s injuries, and it relied almost exclusively on testimony from medical experts to prove its case. Those experts testified that Tamara’s injuries were diagnostic of Shaken Baby Syndrome and that short falls
cannot cause fa tal head injuries, like the injuries Tamara suffered. In the nearly two decades since Hanson’s trial, the scientific integrity of the testimony provided by the State’s experts has been undermined. Medical experts
now agree , and documentary evidence prove s, that short falls can cause fatal hea d injuries in children; experts also agree that injuries, like those suffered by Tamara, can be explained by causes o ther than abuse.
T his sea

- change in scientific consensus forms the basis for Hanson’s federal
habea s petition. After an evidentiary hearing, the district court held that Hanson had demonstrated that he was actually innocent within the meaning of Schlup v.
Delo , 513 U.S. 298 (1995) , and McQuiggin v. Perkins , 569 U.S. 383 (2013)

. Specifically, the district court determined that, based on “new reliable evidence”3

that was not presented at trial, Schlup , 513 U .S. at 324, Hanson had demonstrated that “it is more likely than not that no reasonable juror would have convicted him
in the l ight of the new evidence.” McQuiggin , 569 U.S. at 399. Because Hanson satisfied the high threshold necessary to pass through the actual innocence gateway under Schlup and McQuiggin , the district court proceeded to address on the merits the otherwise

- proce durally defaulted claims in Hanson’s habeas petition

. Ultimately, the district court granted Hanson relief on
Ground Ten

–– that the introduction of flawed expert testimony at trial undermined
the fundamental fairness of Hanson’s entire trial, in violation o f his right to due
process. O n appeal, the State does not contest the district court’ s finding that Hanson
has satisfied the gateway “actual innocence” standard under Schlup and McQuiggin

. The State also has not explicitly contested the district court’s
conclusion on the merits of Ground Ten

. Instead, t he State mounts two procedural challenges to the district court’s
decision , arguing : (1) the district court incorrectly determined Ground Ten of Hanson’s petition was procedurally defaulted and therefore technically exhausted, because Nevada’s state procedural bars have an exception for actual innocence,
similar to the federal Schlup exceptio n; and (2) the district court erred by considering evidence adduced at Hanson’ s gateway innocence hearing to decide4

the merits of Ground Ten. We review the district court’s order granting or denying a habeas petition de

novo. Gonzalez v. Duncan , 551 F.3d 875, 879 (9th Cir. 2008). The district court’s factual findings are reviewed for clear error. Reynoso v. Giurbino , 462 F.3d 1099,
1108

- 09 (9th Cir. 2006). We have jurisdi ction under 28 U.S.C. §§ 1291 and 2 253, and we affirm

. 1. The district court correc tly concluded that Ground Ten was procedurally defaulted and therefore exhausted. Where a petitioner’s claims are procedurally defaulted in state courts, those claims are also exhausted because “there are no state remedies any longer ‘available.’” Colema n v. Thompson , 501 U.S. 722, 732 (1991) (quoting 28 U.S.C. § 2254(b)). Even “w here a federal habeas petitioner raises a claim which has never been presented in any state forum, a federal court may properly determine whether the claim has been procedurally defaulted under state law.” Harris v. Reed , 489 U.S. 255, 269 (1989) (O’Connor, J., concurring) (emphasis in original ).
I f Hanson attempted to raise Ground Ten now , in a third state habeas petition, the Nevada courts would treat that petition as p rocedurally barred; the Nevada Supreme Court already concluded Hanson’s second state habeas petition , filed over a decade ago, was untimely, suc cessi ve, and barred by laches. Indeed, t he State recognizes as much. The State insists, however, that the availability of an exception5

to those procedural bars for actual innocence, see Pellegrini v. Nevada , 34 P.3d 519,
537 (Nev. 2001) , requires Hanson to retu rn to s tate court before Ground Ten can be
considered exhausted

. This argument fails because Hanson already presented his actual innocence
argu ment to the Nevada state courts. 2 The district court found that the “record reflects” that “Hanson argued in state court that he is actually innocent” in “an attempt to overcome procedural bars in state court.” That finding is not clearly

erroneous. Reynoso , 462 F.3d at 1108

- 09. In the state district court, Hanson presented the affidavit of Dr. Ophoven

— a medical expert who would later testify , consistent with her state district court affidavit, at Hanson’s hearing in federal
court

— and argued that her affidavit provided “new evidence” that would “support a motion for a new trial.” In the Nevada S upreme Court, Hanso n ’s pro se filings argued that he was actually innocent under Schlup and Pellegrini , that Dr. Ophoven’s affidavit supported his claim of innocence, and that the intervening changes in scientific understanding rendered obsolete the testimony used to convict
him. Indeed, Hanson pleaded with the Nevada Supreme Court to “please look at all the documents that clearly show evidence of actual innocence, wh ich is a

2 Because Hanson did present his actual innocence arguments to the Nevada state courts, we need not decide whether Hanson was required to do so in order to exhaust his claims.6

miscarriage of justice, ” and attached the argument and affidavit from state district court to support his claim of actual innocence. Although the Nevada courts declined to address Hanson’s actual innocence argument, Hanson afforded the state courts with the necessary opportunity to consider the argument

. See Koerner v. Grigas , 328 F.3d 1039, 1046 (9th Cir. 2003) (exhaustion requires presentation of the “operative facts” and “legal theory”)

. Accordingly, Hanson is not required to file a third habeas petition, and present his actual innocence argument again , in order to exhaust Ground Ten. See O’Sull ivan v. Boerckel , 526 U.S. 838, 844 (1999) (noting that exhaustion does not “require prisoners to file repetitive petitions” ).
The district court therefore correctly determined that Ground Ten was procedurally defaulted and exhausted.
2. The district c ourt did not err in considering evidence adduced at Hanson’s hearing on his gateway innocence claim to decide the merits of Ground
Ten. Section 2254(e)(2) limits the discretion of federal district courts to hold evidentiary hearings on a habeas petitione r’s claims in certain circumstances

. See 28 U.S.C. § 2254(e)(2). However, § 2254(e)(2)’s opening clause limits its application to those instances where a prisoner “has failed to develop the fac tual basis of a claim
in State c ourt proceedings.” Id . (emphasis added). The Supreme Court has7

interpreted this langu age to require some showing of a “ lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.” Williams v. Taylor , 529 U.S. 420, 432 (2000). If a prisoner acts diligently in attempting to develop the factual basis for a claim, § 2254(e)(2)’s limitations do not apply. Id. at 437. Hanson attempted to develop the factual basis for his actual innocence
claim

— which, critically, would have included all the evidence necessary to support
his claim under Ground Ten

— in the state district court. Hanson requested an evidentiary hearing , and he sought additional funds in order to hire experts to testify at the hearing. However, at the State’s urgin g, the state district court vacated the evidentiary hearing, dismissed the petition on procedural grounds, and denied the request for additional funds to hire experts. After the dismissal of the petition,
Hanson’s court

- appointed counsel moved to withdraw. But , even then, counsel requested that Hanson be provided new counsel to bring a motion for a new tria l based on the changed scientific evidence. That request, too, went unanswered. Hanson therefore made a “reasonable attempt, in light of the informatio n available at the time, to investigate and pursue” his claim s
. Id

. at 435. Therefore, § 2254(e)(2)’s limitations do not apply, and the district court did not err in considering8

the evidence adduced at Hanson’s evidentiary hearing to decide the merits of G round
Ten. 3
3. The district court’s order granting a conditional writ of habeas corpus
to Mark Hanson is AFFIRMED . The district court shall order Hanson released from custody within sixty days of the issuance of the mandate , unless , within that sixty

day period, the State files a written notice in the district court of its election to retry Hanson, and the State thereafter, within sixty days after the filing of that notice, actually commences Hanson’s retrial

.

AFFIRMED

.

3 We need not address the State’s suggestion that the district court improperly relied on Gimenez v. Ochoa , 821 F .3d 1136 (9th Cir. 2016), to grant relief on Ground Ten. The State, correctly, did not argue that this provided a n indepe n dent basis for reversing the district court. A nd, under any circumstances, the argument is without merit. See Gimenez , 821 F.3d at 1143 (noting courts, including the Supreme Court, “have long considered arguments that the introduction of faulty evidence violates a petitioner’s due process right to a fundamentally fair trial

— even if that evid ence does not specifically qualify as ‘false testimony.’”).