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

ORDER AND AMENDED 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 Amended November 20, 2013

B efore: W illiam C. Canby

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

Order; 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.

ORDER

T h e opinion f

iled September 1 6, 2013, is h e re b y AMENDED as follows:

1. At pag e 9, line 9, of the s l i p o pinion, delete <also submitted> and repl a c e it with <had also attached to his federal habeas petition>.

2. At pag e 19, lines 9–10, o f the slip opinion, d e l e t e <and that the civil attorney helped> a nd r eplace it with <and that the civil attorney , B radley Gag e, helped>.

3. At pag e 19, line 20, of the slip opinion, delete < a ga i nst the State, a

nd then aba n d o n ed him> and replace it with <ag ainst the State. L inder and G ag e then abandoned L arsen>.

4. At pag e 1 9
, l ine 24, of the slip opinion, delete
<ex tremely

>.

5. At pag e 19, lines 26–27, o f the slip opinion, d e l e te <because of h i s r etention of L inder> and replace it with <based on his retention of Gag e and L inder>.L A R S E N V

. S O T O 4

W ith the opinion thus amended

, the p anel has unanimously voted to deny the petition for rehearing

. J udg e s Reinhardt and W ardlaw have voted to d eny the sug g estion for rehearing en banc, and J udg e Canby has recommended denial.

The full court h as b ee n advised of the petition for rehearing en b an c

. N o a ctive judg e has requested a vote on whether to rehear the matter en banc. F ed. R. App. P. 35.

The petition for rehearing and sug g estion for rehearing en banc are DENIED

. No f uture petitions for rehearing o r petitions for rehearing

en banc will be entertained.

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. T he district c ourt held that L arsen’s claims could b e 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 innocen t. Notwithstanding the
one-y ear limitations p e r iod imposed on the filing of federal habea s petitions by the Antiterrorism and Effective Death Penalty Act o f 1996 (“AEDPA”), see 28 U.S.C. § 2244(d), a habeas petitioner who convincing ly demonstr ates that he is innocent i s e n titled to present his claims for relief in federal
court. McQuiggin v. Perkins , 133 S. Ct. 1924, 1928 (2013). W e conclud e that L arsen has made the requisite showing o f innocence, and we affirm.L A R S E N V

. S O T O 5

I.

A.

On the nig ht of J une 6, 1 998, L os Ang eles p ol i c e responded to a report of an assault with a deadly weapon with shots fired at the Gold Ap p l e b ar 1 in L os Ang e les’s San F ernando Valley

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

Officer Townsend would later test i f y (at L arsen’s 1999 trial) that he and Officer Rex quickly n otice d a m a n i n the bar’s parking lot who matched the e arlier descr i p t ion o f the suspect. B oth officers would testify t h a t t h e 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 ever

y o n e i n the parking lot to 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

o f a police car, and Officer Townsend then set out to sea r c h for the object that he testified L arsen had thrown. O f f icer

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 6

Townsend found a double-edg ed knife with a w eig h ted handle and a fing er g uard underneath a pickup truck. He also found a copper cy linder ten to thirty feet from where L arsen had been standing

, but in th e 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 than the c opper bar. L arsen was 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

a f t e r a jury trial. 2 The p rosecution chose to c harg e the offense as a felony

. B ecause L arsen had several prior felony convictions, he was sentenced to twenty -eig ht y ears to l ife imprisonment under Californ i a’s Three Strikes L aw. The California Court of Appeal affirmed L arse n’s conviction on direct review on J u ne 1, 2000, and th e C alifornia Supreme Court denied review on Aug ust 9, 2000.

B.

I n May 2 005, L arsen filed a habeas petition in L o s Ang eles County Superior Court. H e arg ued that h e h ad received ineffective a ssistance of counsel at his trial because his defense attorney , who has since b een disbarred, failed to

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 7

conduct an a dequate investig ation of his case, did n ot c all several pote ntially ex c ulpatory witnesses, failed to request that the knife be ex amined for fing erprints, an d did not present a theory o f

third-party

culpability

.

L arsen attached thirteen ex h ibits to h is petition, including several declarations from individuals w ho witnessed the
events a t the bar who de clared 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 forme r p o lice chief. Mr. McNutt declared that he was in the parking lot of the bar with his wife

on the nig h t in question. There

, h e s a w “a man nicknamed ‘B unker’” ar guing with Mr. McNutt’s stepson, Daniel Harrison. W hen the police beg an to arrive, Mr. McNutt “saw B unker reach into the wais t b a n d o f his pants. He took

s omething out that looked like a knife. He threw it unde r a

car that was p a

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

saw another man, w ho he later learned was L a rsen, being d e t ained and “ wondered w hy he had been arrested.” Mr. McNutt’s w ife, E linore, w ho accompanied him that n igh t , also declared t h a t she “observed B unker 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

c ar.” She specifically declared that “Daniel L arsen h ad nothing in his h ands, nor had he made any movements at this time.” B oth McNutts stated that they d id not believe L arsen did any thing on the n ig ht in question that warranted his arrest. They had m o v e d to North Carolina and did not k now that L arsen had been tried or convicted for any crime.

L arsen submi t t e d another declaration from J orji Owen, the g irlfriend of a man n amed William Hewitt, also known a s

“ Bu n ker.” She d e c lared that after the incident at the G o l dL A R S E N V

. S O T O 8

Apple bar, “ Hewitt told me that L arsen h ad been arrested for possession o f h is (Hewitt’s) knife, a nd that he (Hewitt) h ad tossed the knife under a truck when the poli ce 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 was the individual who had thrown th e k nife when the police arrived, and he fel t r e s p o nsible f or L arsen being in jail.” L arsen a lso submitted a declaration from Hewitt himself, which sta t e d : “ I know that the k nife was not [L arsen’s]
, because it was mine.” Hewitt stated that he “did not te stify in the trial in which Daniel L a rsen was convicted, because no one subpoenaed me.”

L arsen raised similar claims in h abeas petitions before the California Court of Ap p e al in March 2 006 and before the California Supreme Court in M a y 2 006. All three courts denied relief.

C.

L arsen filed his federal habeas 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 ineffect ive because he failed to locate, investig ate, and present ex culpatory witnesses or to present a third-party

culpability

theory to the jury

.

AEDPA g ene ra lly imposes a one-y ear p e riod o f limitations o n a federal h abeas petition, commencing on the date when the challeng ed c onviction becomes final. 28 U.S.C. § 2244(d)(1)(A). I t is undisputed that L arsen’s federal p e t i t i o n was filed in 2008, well over a y ear after his 1 9 99 c onviction became final. S ee Bowen v. R o e , 188 F. 3 d 1157, 1159 ( 9th Cir. 1 999) (noting that a state court criminalL A R S E N V

. S O T O 9

judg ment is “ fina l ” for purposes of c ollateral attack at the conclusion of review in the United States Supreme Court o r when the time fo r s e eking certiorari review ex pires). Al t houg h the one-y ear limitation period is tolled d uring the pendency of a proper sta te habeas petition, see 28 U .S.C. § 2244(d)(2), L arsen did not file his state petition unt i l M ay 18, 2005. We hav e h e l d “that section 2244(d) does not permit the reinitiation of the limitations p eriod that has ended be f ore the state petition was filed.” Ferguson v. Palmateer

, 321 F

. 3 d 820, 823 (9th Cir. 2003). Thus, it is c lear 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 of

justice,” Schlup v. Delo

, 513 U.S. 298, 314–15 (1995) (quoting McCleskey v. Z a n t , 499 U.S. 467, 494 (1991)), f

ederal courts may hear t h e merits o f a h abeas petition despite an otherwise applic ab l e procedural bar. L arsen contends, and the district court co n c l uded, that his ineffective-assistance-of-counsel claim should be considered

on the merits despite its untimeliness b ecause he is innocent. “[ P] risoners asserting innocence as a g ateway to defaulted claims must establish that, i n lig h t of new evidence, ‘it is

more likely than not that no reasonable juror would ha v e found petitioner g uilty bey ond a re a s onable doubt.’” House

v. Bell

, 54 7 U.S. 518, 5 36–37 (2006) (quoting Schlup

, 513 U.S. a t 327). I f L arsen satisfies this d emanding standard, then he is entitled to have hi s federal claim heard on the merits notwithstanding the s t a t u t e 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

,L A R S E N V

. S O T O 10

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 had a lso attached to h i s f e deral h abeas petition declarati o n s from J orji Owen a nd W illiam Hewitt that he had submitted with h is state habeas petition. S ee supra p. 7.

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

ormer police officer

. At the time of the hearing

, he was a correctional offic e r in T ennessee. He testified that he was present in the parking lo t of the Gold Apple on the nig ht L arsen was arrested. H e a nd his wife

were meeting h is stepson, Danny ; he e stimated they arrived
at 7:30, thoug h he was “not posit i v e o f the time.” After his wife heard “a loud noise d o w n w here Danny ’s car was parked, some arg uing g o ing o n,” Mr. McNutt went to i nvestig ate the situation. Danny was a rg uing with a man whom he repeatedly referred to as “B unker,” and B unker was

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 11

“doing all the talking .” L arsen was also present, b u t was not participating in the arg ument.

W ithin about two minutes, Mr. Mc Nutt observed “approx imatel y 20, 25 L A PD that were coming from all different d irections.” McNutt saw B unker throw a me t a l lic object u nderneath 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 o n “ the way it sounded 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

. ” S u bsequently

, a police o fficer handcuffed and frisked McNutt, “massag ing ” his penis for about five or six seconds i n t he process. W hen the o fficers realiz ed that McNut t w a s affiliated with law enforcement, they released him.

Mr. McNutt witnessed L arsen’s arrest. H o wever, it was not until two and a half y e ars later 4 that an attorney contacted h i m about providing testimony on L arsen’s behalf. Mr. M cNutt would h ave testified o n L arsen’s behalf, b ut t h e attorney never provided a specific time or place to g o to g ive his testimony

. I f he had b e e n 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 testified that h e did
not notice any f

l o o d lig hts or hear a helicopter during the

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 12

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 witnes s e d occurred around 7 :30 p

. m., thoug h h e was “not sure of the ex a ct time.” W h en asked, he specifi c a l l y stated that a copper w eig ht would not h a ve made the sound h e heard when B unker threw the object. He also st a t e d that he “ w as a nervous wreck, all these police officers and shotg uns and every thi n g ,” and that he felt the officers were rude and roug h.

Elinore McNutt beg an her t e s t i m ony by recounting that she had had several back su r g er i es and suffered from neuropathy

, diabetes, a

nd fibromy alg ia; she in d i c ated that these conditions would make it diff i c u l t for 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, bu t she could not remember what time they w ent. She “saw a couple of g uy s walking r ig ht up to [ her] so n ’ s c ar, kind of in a hurry ,” and she recog niz ed one of th em as a man k nown b y the nickname B unker. L arsen was also p r e s e n t

. B ecause it appeared t h at “something [ was] g oing on,” her husband

w alked over to where the c onfrontation was taking pl ac e 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 ithin three or four minute s , t h e police arrived. W h en the police beg an to approach, B unker “r e a c h e d in his pants pocket o r shirt and tossed a k nife under [ a] car” 5 near where he was standing

. M eanwhile, L a rsen “just stood there, kind of, du m b f

o u n ded. 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.

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 13

Althoug h she saw L arsen being placed in a patrol ca r, 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 arsen for throwing the ob j ect und e r t he car, she would have corrected their mistake. 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.

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

one or two d

rinks after the p olice left, thoug h she “ [ couldn’t] be positive that far, long ag o”; in any eve nt, she d id not “think [ they ] were there a long time, because [ her] husband

w as, pretty , y ou know, upset.” She recalled the parking l o t being lit by street li gh t s, but d id not recall any flood lig hts from p olice cars or the presence of any h elicopters. She also

saw that her husband was “fondled” by a p o l i c e officer, a nd could not believe what was happening

. S h e s t ated 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 hea rd.” She also testified that h er ey es were not on B unker or L arsen for the entire incident, because she “scanned” the area 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 convic ted o f conspiracy in 1990 a n d t hen in 1998 for being a f elon in possession o f a firearm. He h as not b een 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 onL A R S E N V

. S O T O 14

the nig ht in question. He knows D aniel L arsen, who was also

a t the bar that nig ht. He recounted that a man other th a n L arsen approached him in the bar; they ex chang ed words, a nd the man “flashed a knife.” The man said, “You know, I could kil l y ou rig h t now.” McCracken described the k nife a s d o uble-edg ed and about f our to five inches long

. I t h ad “something that could have come over y o ur thumb a nd 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, and testified that it “looks pretty similar” to the k nife he saw at the bar. He never saw Daniel L arsen with a k n i f e that evening

. Thoug h McCracken and the man with the knife resolved their di spute without a n altercation, the bartender informed McCracken that she had called the police. He was
not in the parking lot when L arsen was a rrested. McCracken testified that L a r s en later called him from jail, and h e told L arsen, “I know y ou didn’t have the knife that n i gh t

. H a ve y our lawy er g et a hold of me.”

On cross-ex amination, w hen asked what the man with the knife looked like, McCracken stated t h a t he was 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 ten y ears h a d e lapsed, he was asked whether “it would b e hard to a lso remember wh a t the knife looked like ” ; h e responded, “No, I remember the blade distinc t l y b e cause when somebody say s, y ou know: I could kill y ou rig ht now, and then they show y ou something

, that

one p articular 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 ha v e the knife on the nig ht of the arrest. He admitted that he had not seen any one in the parking lot throwL A R S E N V

. S O T O 15

an object and was not p r esent w h e n t he police arrived. McCracken thoug h t he may h ave had one beer before seeing the knife, and had drunk o ne o r two beers total that nig h t. He waited to leave the bar until he was certain the police had left, and ultimately

left around 9:30.

B a sed on the evidence before her, Mag istrate J udg e Seg al

recommen ded that the district c ourt deny the W arden’s motion to dismiss L arsen’s habeas petition as untimely

. She concluded that, in lig h t of the evidence L arsen p resented, “ no reasonable juror would have found Petitioner g u i l ty bey ond

a reasonable doubt.” The d istrict court ado pted that recommendation.

Mag istrate J u dg e Seg a l then held a second evidentiary he ar i n g on L arsen’s ineffective assistance of counsel c laim. F inding that L a

rsen “clearly r e c eived ineffective assistance o f counsel” b ecause his trial counsel f a i led to present any evidence in L arsen’s defense, she r ecommended t h a t t he district c ourt g rant the F irst Amended Petition and order the W a r den to release L arsen or retry him wi t h i n 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 n o v o the district court’s decision to g rant

or deny a p et i tion for a writ o f habeas corpus. Lambert v

. Blodgett

, 393 F .3d 943, 9 6 4 ( 9th Cir. 2004). “F actual finding s and credibility d eterminations ma d e b y the districtL A R S E N V

. S O T O 16

court in the cont e x t o f g ranting or deny ing the petition a re reviewed for clear error.” Id. 6

The Warden does not appeal the district court’s g r ant o f rel i e f o n the merits of L arsen’s ineffective assistance c laim. Nor d oes h e pursue a claim that the evidentiary hearing s h eld before Mag istrate J udg e Seg al were improper under Cullen v

. Pinholster

, 131 S. Ct. 1388 (2011 )

. T h e W arden has therefore waived those issues. See 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

m o tion to dismiss L arsen’s p etition as bey ond AEDPA’s limitation period.

III.

A.

As an initial matter, we must determine the effect, if any , of the Supreme Court’s recent dec ision in Perkins on L arsen’s appeal. The Court held that “actual innocence, if proved, serves as a g ateway throug h which a petitioner may

6 W e rej ect th e W ard en ’ s su 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 arsen h as satisf

i e d t h e S ch 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 distin ct in q u iry f r o m t h e q u estio n w

h eth er th e w itn esses t estifi 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 er s o n v. City 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 itn esse s ” an d th at “ McCrack en also g av e cred ib le testim o n y .” T h e 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 17

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 d elay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a f a ctor i n determinin g whether a c tual innocence has been 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 for reconsideration o f L arsen’s claim in lig ht o f Perkins

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

of his new evidence. Cf. id. a t 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 ing the quest i o n b e fore it, remand would be p roper. See Johnson v. B ay A r ea Rapid Transit Dist.
, — F .3d —, 2013 W L 3 888840 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 delay i n f i l ing his federal h abeas petition undermined the credibility 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 redible b e c ause “no petitioner w ho is actually innocent would choose to remain silent about his federal habeas c laims fo r m o r e than a y ear.” Even without the benefit of Perkins

, the Mag istra t e J u dg e recog niz ed that a belated assertion 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 remai n s i l e n t about his innocence.” The Mag istrate J u dg e found:L A R S E N V

. S O T O 18

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 r ial attorney to present ex culpato ry evidence from Hewitt, Owen, and others. W hen [ L ar s e n] became

aware of the McNutts’ e x culpatory testimony

, he a s k e d his trial a ttorney to move for a new trial a nd unequivocally stated, “I ’m innocent.”

[ L arsen] continued to asse r t his innocence after his c o n v i c tion. B etween his conviction in 1999 and t h e s tart of the California I nnocence Projec t ’ s representation in 2002, [ L arsen] contacted nine different attorney s o r leg al org aniz ations fo r assistance in proving his innocence.

The Mag istrate J udg e also evaluated t h e w itness testimony supporting L arsen’s evidence and found it credible:

Not only has [L arsen] consistently proclaimed his own innocence, but P e t i t i o n er’s supporting witnesses have as well. The M cNutts, who
appear to have no other c onnection with [ L arsen]
, have testified credibly to [ L arsen] ’s innocence for a

pprox imately eig ht y e ars. I n statements made informally

, under o a t h in a declaration, and under oath in l ive testimony before the C o u r t , t h e 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:L A R S E N V

. S O T O 19

This appears to be one of the “ extraordinary

c ases where the petitioner asserts h i s innocence and establishes t h at the 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 Report and Recommendation de m o n s t r a tes that dilig ence was not considered “only discretely .” The Mag istrate J udg e made finding s upon which she and the district court concluded that L ars en ’ s d e l ay in filing did not show that his evidence was unreliable, but was rather ex p lained by his defense attorney ’s failures a nd his subsequent attempts to acquire appropria te leg al representation. The Mag istrate J u dg e t h en concluded that L arsen’s evidence was reliable because it has r emained substantively c onsi s t e n t for o ver a decade. This is perfectly

c o n s istent with the Court’s teaching in Perkins that

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

. ” 133 S. Ct. at 1935 (emphasis added). I n short, it is simply implausible that Perkin s would alter the district court’s c onclusions about the c r e d i b i l i ty of L arsen’s evidence, b ecause the district court already undertook the p reci s e 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 arsen’s delay in filing

a fede r al h abeas petition diminishes the credibility of his “new” evidence. He contends t h a t L a rsen has failed to

ex p lain why he delay ed from his conviction in 1999 until hisL A R S E N V

. S O T O 20

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 habeas p et ition was the culmination of his unbroken efforts over many y ears t o p rove his innocence usi n g evidence he knew could ex o nerate him but which his attorney incompetently failed to present at trial. Second, the W a r den st r e t c h e s the record by claiming that, by 1 999 o r 2000, L ars e n had a ll the information he needed ( and all the leg al assistance required) to collaterally attack his conviction

on the basis of ac t u a l innocence. The W arden notes that L ar s en averred in a declaration submitted 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 Petition in federal court , L arsen stated that the McNutts g ave a written statement to L arsen’s
g irlfriend “dated September 21, 2 001.” F urther, the W arden
notes that L arsen declared before the C a l ifornia 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 , B radley Gag e , h elped him find another
att o r ney named Charles L inder to “write [ his] h abeas petition.” Given L a

r s e n ’ s a wareness of ex culpatory w itnesses and the f act t h a t h e had the assistance of counsel during the relevant p eriod, the W arden contends that L arsen should have presented his evidence of innocence e arlier than 2005 a nd has
not ex plained his failure to do so.

Th i s a r g u ment is unavailing

. 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 cas e ” ag ainst the State. L inder and Gag e then abandon ed L arsen after “a California Supreme Court caseL A R S E N V

. S O T O 21

came down that made it impossible for us to w in a civil suit until after [ L arsen’s] innocence was proven in an evidentiary hearing

. ” Thus, it is misleading for the W arden to sug g est the record shows L arsen “ha d c o unsel helping him to prove his i n n o c ence as early as 2000” based on his retention of G a ge and L inder. Second, as the Mag istrate J udg e found, L a r s en contacted numerous l e g a l o r g a n iz ations b etween 1 999 and the
start of t h e California I nnocence Project’s representation in 20 0 2. That it took L arsen several y ears to find attorney s to properly develop and present h is claims does not undermine the credibility

of his evidence.

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 is all the more suspect because h e waited to present his evidence of a third-party perpetrator

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

a c o ncealed weapon.” These arg uments are likewise unpersuasive. F irst, it is inex plicable that L arsen w ould have willing ly allowed the limitations p e r i o d on his own h abeas petition to ex p ire while he remained incarcerated in order to
spare W illiam Hewitt from c h a r g es of carry

i n g a c oncealed

w e a p o n , a nd the W arden does 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 had not been d ecided, so a c hoice to delay filing the petition ca r r i e d the strong likelihood that federal law could have developed to b ar u ntimely f iling s n otwithstanding

a credible claim of actual innocence. F urthermor e , t hree
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 not undermine theL A R S E N V

. S O T O 22

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 would 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 a r den has not ex plained h ow any delay in filing by L arsen h as prejudiced the State 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 a rg ument sug g ests that L arsen is in fact innocent: if L arsen delay e d fi ling his petition to protect H ewitt, then H ewitt (and not L arsen) must 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 arden ha s n o t 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. Perkins

, 13 3 S

. C t

. 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 Michig an advanced in Perkins that petiti o n e r s claiming actual in n o c e nce should be subjected to a “ threshold dilig e nce req u i r ement”—an arg ument the Supreme Court concluded “makes scant sense.” I

d . at 1935.

I n short, delay is rel e v an t i f it is “[ u] nex plained” o r “unjustified,” id.

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

, ” S c h lup

, 513 U.S. at 332. L arsen’s alleg ed “ delay ” is e x plained and readily understandable, and the W a rden presents no plausible reason why his late filing d e t r a cts from the credibility 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 districtL A R S E N V

. S O T O 23

court concluded just the opposite, findin g t hat L arsen’s consistent and dog g ed a t t em pts to prove his innocence a nd the con s i s t ency of his witnesses’ testimony over a period o f
y ears bolstered the reliability of h is innocence claim. These finding s are not clearly erroneous, and nothing in Pe r kins 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.

IV.

A.

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

a petitioner must produce p r o o f of his innocence that is sufficient to convince a federal court that a failure to entertain his claim would constitute a f u n d a mental miscarriag e o f justice. Lee
, 653 F .3d at 937–38. This “fun d amental miscarriag e of justice” doctrine h as b ee n described as “a
g ateway throug h which a habeas petitioner must pass to have his otherwise barred constitutional c l a im considered on the merits.” Herrera v. Collins , 506 U.S. 390, 404 (1993).

“To pass thr o u g h the Schlup 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 him in the lig ht of the new evidence.’” Lee
, 653 F .3d at 938 (quoting Schlup

, 513 U.S. at 327). “This

ex a c ting standard ‘permits review only in the ‘ex traordinary ’

c a se,’ but it ‘does not require absolute certainty about t h e petitioner’s g u ilt or innocence.’ Id. (quoting H ouse , 5 47 U.S.
at 5 38). “To be c r e d i b l e, such a claim requires petitioner to support his alleg ation s o f constitutional error with new reliable e vidence—whether it b e e x cul patory scientific evidence, trustworthy ey ewitness accounts, o r c r iticalL A R S E N V

. S O T O 24

phy sical evidence—that was not presented at trial.” Schlup

, 5 1 3 U .S. at 324. W e have held that “where post-convicti o n evidence casts doubt on the conviction by undercutting the reliability of the proof of g u i l t , but not by affirmatively proving innocence, that c an b e enoug h to p ass throug h the Schlup g ateway to allow co n s i d eration of otherwise barred claims.” Sistrunk v. Armenakis , 292 F .3d 669, 673 (9th Cir. 2002) (en banc) (citing Carriger v. Stewart
, 132 F.3d 463, 478–79 (9th Cir. 1997) (en banc)).

The Schlup standard “ is demanding ,” Perkins

, 133 S. Ct.
at 1936, and prece d e n ts holding that a habeas p etitioner satisfied its strictures have ty pic a l l y involved dramatic new evidence of innocence. I n House
, for instance, DNA evidence established that s em e n found on a murder victim

came from the victim’s hus b a n d a nd 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 that he “ could have been the murderer,” id

. a t 5 4 8

. I n Carriger
, the prosecution’s chief trial witness had confessed in open court that he himself (an d n o t C arrig er) h ad committed the murder for which Carrig er had been convicted. See 132 F

. 3 d at 471–72. I n c o n t rast, we have denied access to the S chlup g ateway where a p e titioner’s evidence o f in n o cence was merely cumulative or speculative or was insufficient to overcome otherwise convincing proof of g uilt. See
, e.g. , Lee
, 653 F .3d at 943–46; Sistrunk

, 2 9 2 F .3d at 67 5 –77. Thus, to satisfy Schlup

, the petitioner’s new evidence m u s t convincing ly undermine the State’s c ase. However, definitive, affirma t ive proof of innocence is not

s trictly required. As w e e x plained in Carriger
, a S c h l u p claim “is procedural, not substantive”: a petitioner’s new evidence must be s u f

f icient to undermine a court’s confidenceL A R S E N V

. S O T O 25

in his conviction, but not to erase any possibility of g uilt. 132 F .3d at 478.

B.

L arsen has satisfied this demanding standard. None of the W a rden’s arg uments can overcome the simple, crucial fact that L arsen produced witnesses who were ne v e r called to speak on his behalf at his tria l and who g ave credible testimony that someone other than L a rsen committed the acts for which he was convicted and sentenced, whi l e L a rsen stood nearby and did nothing a t all, much less a criminal act. L arsen’s claim of innocence lies at the c ore of the

“ miscarriag e of justice” d octrine: it g enerates “sufficie n t doubt a b o u t t he validity of his conviction to satisfy Schlup

an d permit consideration of his c onstitutional claims.” Id. W e conclude that it is more likely than not that no reasonable juror hearing all of the evidence L arsen presented in federal
court would vote to con v i c t h im under the bey ond-areasonable-doubt standard.

The W arden fails to offer any contradictory evidence

. He merely offers several differen t a r guments 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 misapplied the app l i c able leg al standards b y resting h e r recommendation o n h er o wn subject i v e lack of confidence in the verdict, rather than an objective determination of what a reasonable jury would do
g iven the newly supplanted re co r d

. I n Schlup

, the Supreme Court observed that “ [ i] t is n ot the district c o u r t ’s independent judg ment as to whether reasonable doubt ex ists that the standard addres s e s ; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do.”L A R S E N V

. S O T O 26

513 U.S

. a t 329. However, the Mag istrate J u dg e made an objective determinati o n when she concluded that, “had the jury been able to cons i d e r ” the evidence p resented 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 a lso referenced her own lack o f confidence in the verdict does not render her analy sis leg ally

erroneous

. I ndeed, this 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 a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is a lso satisfied that the trial was free of nonharmless c onsti tutional error, the petitioner should be allowed to pass throug h the g ateway and arg ue the merits of his underly ing claims.” (emphasis added)) ; a ccord Majoy v

. Roe
, 296 F .3d 770, 7 75–76 (9th Cir. 2 002). This “confidence in the outc o me” formulation is simply another way o f describing S

chlup ’s “no reasonable juror” standard, and o ne that courts h ave used for decades. Cert a i n l y , it was not reversible error for the district court to employ lang uag e that has been endorsed bot h b y the Supreme Court and by our court.

Nex t, the W arden arg ues that L arsen has failed to satisfy Schlup because nothing in the evidentiary hearing testimony is incompatible w ith his convi c t i o n

. This arg ument by the W a r den appea rs to have evolved over the life of his appeal. I n his opening b r i e f

, the Warden arg ued that 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: 3 0 or 8:00 p.m., Officer RexL A R S E N V

. S O T O 27

testified at trial that L arsen w as arre s t e d a t 1 2:30 a.m. The W a r den contends that it “strains c r edulity ” to think that a middle-ag ed couple would meet t h e i r a dult 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 W a

rden’s arg ument here that “strains c redulity

. ” B oth McNutts testified that w hile they were at the G old Apple bar, they witnessed a n altercation in the parking lot, that numerous police officers thereafter arrived 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 witnessed a se p a r a t e incident, a ll o f th e s e o ccurrences would have had to repeat themselves within

a period of a few hours at the same e x act location; indeed, this version of events would require L a r s en 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 d id not purport to be definitive about the time of t he incident. Similarly

, they stated that they di d not recall hearing h elicopters o r seeing floodlig hts, but as the M a gi s t rate J udg e noted, that “[ t] he McNutts, eleven y ears later, d id not remember what lig hts they saw or what sirens they heard” constituted “ m inor discrepancies that d o not cast d o u b t o n the McNutts’ clear and consistent memories of seeing B unker, not Pe t i t i o ner, throw the object.”

I n h i s p o st- Perkins supplemental brief, the W arden a r g u e d that the evidentiary hearing testimony is not inconsistent with L arsen’s conviction beca use none of his witnesses actuallyL A R S E N V

. S O T O 28

testified that they saw Hewitt throw a k n i f e

. I t is true that while both McNutts te stified that Hewitt threw a metallic object under a car in the p arking lot, neith e r testified with certainty that the object was a knife. However, both McNutts testified that L arsen had nothing in h is hands and di d not throw any object, w hil e H e wi tt did throw an object that Mr. M c N u t t specifically said could not have been a coppe r weig ht—the only other o bject found in the parking l ot that nig ht. The W arden f urther points to Mrs. McNutt’s admission that she “looked at every direction, like what was
g oing o n , ” w h e n the police arrived at the scene, and arg ues that a r easonable juror could h ave inferred that Mr. McNutt

was probably n ot pay ing much attention to L arsen during the commotion. B ut that it may have been p hy sically possible for L arsen to throw a knife during a split second when neither o f the McNutts was pay ing attention do e s not defeat L arsen’s Schlup claim. Rather, that multiple credible witnesses saw a different person take the same actions t hat 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

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 29

The W arden also arg ues that McCracken’s admission that he was previously c onvicted o f f e l onies would have undermined his c redib i l i t y in the ey es of the jury

, especially i n comparison to the police o fficers who testified for t h e p r osecution. E ven assuming that McCracken’s convicti o n s sug g est that he is g enerally dishonest, the testimony o f individuals who have been convicted of f elony offenses is not alway s to b e disbelieved. McCracken’s testimony is to be viewed not only in lig ht of the contradictory testimony of the police offers, but a l so in lig ht of the clear testimony o f the 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 p erjuring himself for L arsen’s benefit. I ndeed, McCracken g a ve u ncontradicted testimony that he was not a close friend of L arsen’s.

The W arden also arg ues that “none of t h e evidence presented at the federal evidentiary heari n g adequately
accounts for the fact that Petitioner, w h e n arrested at the

s c e ne, g ave the police a false name.” B ut b ey ond a perfunctory reference to the n otion that “a truly innocent man would have had no reason to lie to police about his identity

, ” the W arden doe s n o t ex plain why this false statement undermines any of the newly presented evidence of innocence adduced at t h e evidentiary hearing

. E ven if L arsen’s use o f

a pseudony

m sug g ests c onsciousness of g uilt in some g eneral
sense, it cannot independently support a finding of g u ilt bey ond a reasonable doubt for the specific crime o f which L arsen was convicted. Moreover, it is undisputed that L arsen had prior convictio n s , a n d he may h ave had any number o f

reasons to try to avoid pr o viding his true identity to the police. These mig ht include averting a rrest for a crime he did not commit.L A R S E N V

. S O T O 30

F inally

, the W arden a r g ues that none of L arsen’s new evidence undermines the trial testimony of Officers Rex a nd Townsend, who identified L a r sen as the man who t h rew the knife. However, despite the W arden’s repeated argu m ents that a “ swearing match” bet w e e n prosecution and defense witnesses is insufficient to satisfy Schlup

, i t never meaning fully ex plains how a j u r y faced with evidence from five different witnesses that a d ifferent person threw the knife could nonetheless have concluded that L arsen wa s g uilty bey ond a rea s o nable d oubt. I f the fact that prosecution wi t n esses testified ag ainst the defendant at trial were suff i c i e n t to d efeat any actual innocence claim, the Schlup doctrine would be meaning less.

I ndeed, S chlup itself is to the c ontrary

. I n that case, two corrections officers, F lowers a n d May lee, testified that Schlup w as involved in a jailhou s e m u r d er. See Schlup

, 513 U.S. at 302 (“The State produced n o phy sical evidence connecting Schlup to the killing

, a nd no w i t n e s s o ther than F lowers a nd May lee testified to Schlup’s involvement in the murder.”). L ike L arsen’s, “Schlup’s def ense was that the State h ad the wrong man.” I d. at 303. The district court h ad “concluded that the affidavits p resented by Schlup,” in which prisoners who h ad witnessed t h e crime contradicted the officers

, “ w hen considered ag ainst the p ositive identifications made by F lowers and May lee, failed to cons t i tute a

s u f f i c iently persuasive showing of actual innocence.” Id. at 309 n.19. The Supreme Court dis a gr ee d and remanded for further proc e e d ing s, ex pressly holding that a “petitioner’s showing o f i nnocence is not insufficient solely because the trial record contained sufficient evidence to support the jury ’s

ver d i c t

. ” Id. at 331. L ikewise, L arsen’s “post-conviction evidence casts doubt on t he conviction by u ndercutting the reliabi l ity of the proof o f g uilt,” even if it does notL A R S E N V

. S O T O 31

“affirmatively prov[ e ] innocence”; “that can be enoug h to pass throug h the Schl u

p g ateway to a llow consideration o f otherwise barred claims.” Sistrunk

, 292 F

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

The d istrict court already held that L arsen’s conviction is constitutionally untenable because he received ineffective assistance of counsel at t ri al

, and the W arden has not appealed that ruling

. Rather, the W arden has arg ued only that L arsen’s h abeas petition should not have been considered at all b e cause it w a s u n timely

. B ecause we hold otherwise, 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 must be “ careful to limit t h e s c o p e of federal intrusion into state criminal adjudications and to safeg uard the States’ interest in the integ r ity o f their criminal a nd collateral proceeding s.” W illiams v

. T

a ylor

, 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.

H o w e ver, as the Supreme Court has repeatedly
recog niz ed, “in appropriate cases [ these] principles of comity and finality

. . . must y ield to the i m p er a t i v e of correcting a fundamentally u n

j ust incarceration.” Murray v. Carrier
, 477 U.S. 4 78, 495 (1986) (internal quotation marks omitted). This is such a c ase. B ecause we c onclude that L arsen has met the demanding Schlup standard, we must e x e r c ise the “‘equitable discretion’ of habeas cou r t s to see that federal constitutional errors do n o t r esult in the incarceration o fL A R S E N V

. S O T O 32

innocent persons.” Herrera
, 5 06 U.S. at 404 (quoti n g McCleskey , 499 U.S. at 502).

AF F IRMED.