FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL LARSEN,

Petitioner-Appellee,

v.

JOHN SOTO,

Respondent-Appellant.

No. 10-56118

D.C. No.

2:08-cv-04610-CAS-SS

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

Argued and Submitted

July 30, 2013—Pasadena, California

Filed September 16, 2013

Amended November 20, 2013

Before: William C. Canby, Jr., Stephen Reinhardt,

and Kim McLane Wardlaw, Circuit Judges.

Order;

Opinion by Judge Wardlaw
2 LARSEN V. SOTO

SUMMARY*

Habeas Corpus

The panel affirmed the district court’s denial of a

warden’s motion to dismiss a facially untimely 28 U.S.C.

§ 2254 habeas corpus petition based on a showing of actual

innocence.

After concluding that remand for consideration of the

Supreme Court’s recent decision in McQuiggin v. Perkins,

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

court already undertook the analysis that Perkins prescribes,

and after rejecting the warden’s arguments regarding the

credibility of petitioner’s evidence, the panel held that

petitioner satisfied the demanding standard of producing

proof of innocence sufficient to undermine a court’s

confidence in his conviction.

COUNSEL

Stephanie C. Brenan (argued), Deputy Attorney General;

Xiomara Costello, Supervising Deputy Attorney General;

Dane R. Gillette, Chief Assistant Attorney General; Kamala

D. Harris, Attorney General; Michael R. Johnsen,

Supervising Deputy Attorney General; Richard S.

Moskowitz, Deputy Attorney General; and Lance E. Winters,

Senior Assistant Attorney General, Los Angeles, California,

for Respondent-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LARSEN V. SOTO 3

Jan Stiglitz (argued), Alissa Bjerkhoel, Justin Brooks, and

Alexander Simpson, California InnocenceProject, SanDiego,

California, for Petitioner-Appellee.

Benjamin G. Damstedt and Lori R. Mason, Cooley LLP, Palo

Alto, California; Scott A. Cole, Cooley LLP, Reston,

Virginia, for Amicus Curiae.

ORDER

The opinion filed September 16, 2013, is hereby

AMENDED as follows:

1. At page 9, line 9, of the slip opinion, delete <also

submitted> and replace it with <had also attached to his

federal habeas petition>.

2. At page 19, lines 9–10, of the slip opinion, delete <and

that the civil attorney helped> and replace it with <and

that the civil attorney, Bradley Gage, helped>.

3. At page 19, line 20, of the slip opinion, delete <against

the State, and then abandoned him> and replace it with

<against the State. Linder and Gage then abandoned

Larsen>.

4. At page 19, line 24, of the slip opinion, delete

<extremely>.

5. At page 19, lines 26–27, of the slip opinion, delete

<because of his retention of Linder> and replace it with

<based on his retention of Gage and Linder>.
4 LARSEN V. SOTO

With the opinion thus amended, the panel has

unanimously voted to deny the petition for rehearing. Judges

Reinhardt and Wardlaw have voted to deny the suggestion for

rehearing en banc, and Judge Canby has recommended

denial.

The full court has been advised of the petition for

rehearing en banc. No active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and suggestion for rehearing en

banc are DENIED. No future petitions for rehearing or

petitions for rehearing en banc will be entertained.

OPINION

WARDLAW, Circuit Judge:

Warden John Soto appeals the denial of his motion to

dismiss Daniel Larsen’s petition for a writ of habeas corpus. 

The district court held that Larsen’s claims could be

considered on the merits despite the facial untimeliness of his

petition, on the ground that Larsen presented compelling

evidence that he is actually innocent. Notwithstanding the

one-year limitations period imposed on the filing of federal

habeas petitions by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), see 28 U.S.C. § 2244(d), a

habeas petitioner who convincingly demonstrates that he is

innocent is entitled to present his claims for relief in federal

court. McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). 

We conclude that Larsen has made the requisite showing of

innocence, and we affirm.
LARSEN V. SOTO 5

I.

A.

On the night of June 6, 1998, Los Angeles police

responded to a report of an assault with a deadlyweapon with

shots fired at the Gold Apple bar1

in Los Angeles’s San

Fernando Valley. The suspect was identified as a man

wearing a green flannel shirt and his hair in a ponytail. 

LAPD Officers Michael Rex and Thomas Townsend

responded to the scene. According to the officers, they

approached the bar with their headlights and sirens turned off

to avoid alerting any possible suspects of their arrival. They

approached the bar through a back driveway and turned on

overhead floodlamps, side spotlights, and high beams.

Officer Townsend would later testify (at Larsen’s 1999

trial) that he and Officer Rex quickly noticed a man in the

bar’s parking lot who matched the earlier description of the

suspect. Both officers would testify that the man pulled a

linear object, about five or six inches long, from his

waistband and threw it underneath a nearby car, and that this

man, who wore a green flannel shirt, was Daniel Larsen.

That night, after seeing the man in the parking lot, the

officers ordered everyone in the parking lot to get down on

their knees with their hands on their heads and detained a

number of them in handcuffs. They placed Larsen in the back

of a police car, and Officer Townsend then set out to search

for the object that he testified Larsen had thrown. Officer

1 Various parts of the record refer to both the “Gold Apple” and “Golden

Apple.” We use the former appellation throughout this opinion for

consistency.
6 LARSEN V. SOTO

Townsend found a double-edged knife with a weighted

handle and a finger guard underneath a pickup truck. He also

found a copper cylinder ten to thirty feet from where Larsen

had been standing, but in the opposite direction from where

he said he had seen Larsen throw the object. Officer Rex also

testified that the object Larsen threw was noticeably bigger

than the copper bar. Larsen was arrested at the scene. When

Rex asked for his name, Larsen falsely replied that his name

was “Anthony Vant.”

Larsen was charged with possession of a deadly weapon

under former California Penal Code § 12020(a) and convicted

after a jury trial.2 The prosecution chose to charge the

offense as a felony. Because Larsen had several prior felony

convictions, he was sentenced to twenty-eight years to life

imprisonment under California’s Three Strikes Law. The

California Court of Appeal affirmed Larsen’s conviction on

direct review on June 1, 2000, and the California Supreme

Court denied review on August 9, 2000.

B.

In May 2005, Larsen filed a habeas petition in Los

Angeles County Superior Court. He argued that he had

received ineffective assistance of counsel at his trial because

his defense attorney, who has since been disbarred, failed to

2 California’s Deadly Weapons Recodification Act of 2010 recodified

the penal statutes relating to the control of deadly weapons without

substantive change. See Cal. Penal Code § 16005. The specific provision

under which Larsen was charged is now codified at California Penal Code

§ 21310, which provides that “any person in this state who carries

concealed upon the person any dirk or dagger is punishable by

imprisonment in a county jail not exceeding one year or imprisonment

pursuant to subdivision (h) of Section 1170.”
LARSEN V. SOTO 7

conduct an adequate investigation of his case, did not call

several potentially exculpatory witnesses, failed to request

that the knife be examined for fingerprints, and did not

present a theory of third-party culpability.

Larsen attached thirteen exhibits to his petition, including

several declarations from individuals who witnessed the

events at the bar who declared that Larsen was not the

individual who threw the knife. For example, Larsen

submitted a declaration from James McNutt, a retired Army

Sergeant First Class and former police chief. Mr. McNutt

declared that he was in the parking lot of the bar with his wife

on the night in question. There, he saw “a man nicknamed

‘Bunker’” arguing with Mr. McNutt’s stepson, Daniel

Harrison. When the police began to arrive, Mr. McNutt “saw

Bunker reach into the waistband of his pants. He took

something out that looked like a knife. He threw it under a

car that was parked to the left of my son’s car.” Mr. McNutt

saw another man, who he later learned was Larsen, being

detained and “wondered why he had been arrested.” Mr.

McNutt’s wife, Elinore, who accompanied him that night,

also declared that she “observed Bunker 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 “Daniel Larsen had

nothing in his hands, nor had he made any movements at this

time.” Both McNutts stated that they did not believe Larsen

did anything on the night in question that warranted his arrest. 

They had moved to North Carolina and did not know that

Larsen had been tried or convicted for any crime.

Larsen submitted another declaration from Jorji Owen,

the girlfriend of a man named William Hewitt, also known as

“Bunker.” She declared that after the incident at the Gold
8 LARSEN V. SOTO

Apple bar, “Hewitt told me that Larsen had been arrested for

possession of his (Hewitt’s) knife, and that he (Hewitt) had

tossed the knife under a truck when the police arrived at the

bar.” According to Owen, Hewitt sold his motorcycle to bail

Larsen out of jail “because the knife belonged to him, he was

the individual who had thrown the knife when the police

arrived, and he felt responsible for Larsen being in jail.” 

Larsen also submitted a declaration from Hewitt himself,

which stated: “I know that the knife was not [Larsen’s],

because it was mine.” Hewitt stated that he “did not testify

in the trial in which Daniel Larsen was convicted, because no

one subpoenaed me.”

Larsen raised similar claims in habeas petitions before the

California Court of Appeal in March 2006 and before the

California Supreme Court in May 2006. All three courts

denied relief.

C.

Larsen filed his federal habeas petition on July 15, 2008,

and filed the operative First Amended Petition on October 27,

2008. His sole claim for relief is that his trial counsel was

unconstitutionally ineffective because he failed to locate,

investigate, and present exculpatory witnesses or to present

a third-party culpability theory to the jury. 

AEDPA generally imposes a one-year period of

limitations on a federal habeas petition, commencing on the

date when the challenged conviction becomes final. 

28 U.S.C. § 2244(d)(1)(A). It is undisputed that Larsen’s

federal petition was filed in 2008, well over a year after his

1999 conviction became final. See Bowen v. Roe, 188 F.3d

1157, 1159 (9th Cir. 1999) (noting that a state court criminal
LARSEN V. SOTO 9

judgment is “final” for purposes of collateral attack at the

conclusion of review in the United States Supreme Court or

when the time for seeking certiorari review expires). 

Although the one-year limitation period is tolled during the

pendency of a proper state habeas petition, see 28 U.S.C.

§ 2244(d)(2), Larsen did not file his state petition until May

18, 2005. We have held “that section 2244(d) does not

permit the reinitiation of the limitations period that has ended

before the state petition was filed.” Ferguson v. Palmateer,

321 F.3d 820, 823 (9th Cir. 2003). Thus, it is clear that

Larsen’s petition is facially untimely under § 2244(d).

However, the Supreme Court has long recognized that in

a “narrow class of cases . . . implicating a fundamental

miscarriage of justice,” Schlup v. Delo, 513 U.S. 298, 314–15

(1995) (quoting McCleskey v. Zant, 499 U.S. 467, 494

(1991)), federal courts may hear the merits of a habeas

petition despite an otherwise applicable procedural bar. 

Larsen contends, and the district court concluded, that his

ineffective-assistance-of-counsel claim should be considered

on the merits despite its untimeliness because he is innocent. 

“[P]risoners asserting innocence as a gateway to defaulted

claims must establish that, in light of new evidence, ‘it is

more likely than not that no reasonable juror would have

found petitioner guilty beyond a reasonable doubt.’” House

v. Bell, 547 U.S. 518, 536–37 (2006) (quoting Schlup,

513 U.S. at 327). If Larsen satisfies this demanding standard,

then he is entitled to have his federal claim heard on the

merits notwithstanding the statute of limitations prescribed by

§ 2244(d). Perkins, 133 S. Ct. at 1932.3

 

3

 The Warden initially argued that the innocence exception recognized

in Schlup was not available to excuse the untimeliness of a federal habeas

petition under § 2244(d). However, in Perkins the Supreme Court held,
10 LARSEN V. SOTO

D.

Magistrate Judge Suzanne H. Segal held two evidentiary

hearings related to Larsen’s petition, on May 19 and

November 17, 2009. The first hearing concerned the State’s

motion to dismiss the petition, and thus focused solely on

whether Larsen could make the showing of factual innocence

required to excuse the time bar to consideration of the merits

of his petition. Larsen called three witnesses at the

evidentiaryhearing: James McNutt, Elinor McNutt, and Brian

McCracken. He had also attached to his federal habeas

petition declarations from Jorji Owen and William Hewitt

that he had submitted with his state habeas petition. See supra

p. 7.

James McNutt testified that he is a 22-year veteran of the

military and a former police officer. At the time of the

hearing, he was a correctional officer in Tennessee. He

testified that he was present in the parking lot of the Gold

Apple on the night Larsen was arrested. He and his wife

were meeting his stepson, Danny; he estimated they arrived

at 7:30, though he was “not positive of the time.” After his

wife heard “a loud noise down where Danny’s car was

parked, some arguing going on,” Mr. McNutt went to

investigate the situation. Danny was arguing with a man

whom he repeatedly referred to as “Bunker,” and Bunker was

as we had previously concluded in Lee v. Lampert, 653 F.3d 929, 932

(9th Cir. 2011) (en banc), that Schlup’s innocence exception to ordinary

rules of procedural default is applicable “when the impediment is

AEDPA’s statute of limitations.” 133 S. Ct. at 1932. Thus, the Warden’s

argument that no such exception to the statute of limitations exists is

foreclosed.
LARSEN V. SOTO 11

“doing all the talking.” Larsen was also present, but was not

participating in the argument.

Within about two minutes, Mr. McNutt observed

“approximately 20, 25 LAPD that were coming from all

different directions.” McNutt saw Bunker throw a metallic

object underneath a nearby vehicle; he stated that “from [his]

professional experience” the object likely was not a gun, and

he assumed it was a knife based on “the way it sounded

underneath the vehicle.” In contrast to Bunker, Larsen

“didn’t say one word . . . . His hands were at the side the

whole time, and he was just standing there, listening.” 

Subsequently, a police officer handcuffed and frisked

McNutt, “massaging” his penis for about five or six seconds

in the process. When the officers realized that McNutt was

affiliated with law enforcement, they released him.

Mr. McNutt witnessed Larsen’s arrest. However, it was

not until two and a half years later4that an attorney contacted

him about providing testimony on Larsen’s behalf. Mr.

McNutt would have testified on Larsen’s behalf, but the

attorney never provided a specific time or place to go to give

his testimony. If he had been called to testify at Larsen’s

trial, his testimony would have been consistent with his

statements at the evidentiary hearing.

On cross-examination, Mr. McNutt testified that he did

not notice any flood lights or hear a helicopter during the

4 The record reflects that around this time, Larsen was attempting to

obtain representation to challenge his conviction. Though he had some

false starts with various attorneys who it appeared might take his case, it

was not until after the California Innocence Project began representing

Larsen in 2002 that he pursued habeas relief.
12 LARSEN V. SOTO

events in the parking lot. He never actually made it into the

bar that night, and all the events he witnessed occurred

around 7:30 p.m., though he was “not sure of the exact time.” 

When asked, he specifically stated that a copper weight

would not have made the sound he heard when Bunker threw

the object. He also stated that he “was a nervous wreck, all

these police officers and shotguns and everything,” and that

he felt the officers were rude and rough.

Elinore McNutt began her testimony by recounting that

she had had several back surgeries and suffered from

neuropathy, diabetes, and fibromyalgia; she indicated that

these conditions would make it difficult for her to sit for a

long period of time. She went with her husband to the Gold

Apple bar on the night in question to meet her son, but she

could not remember what time they went. She “saw a couple

of guys walking right up to [her] son’s car, kind of in a

hurry,” and she recognized one of them as a man known by

the nickname Bunker. Larsen was also present. Because it

appeared that “something [was] going on,” her husband

walked over to where the confrontation was taking place

while Mrs. McNutt waited at the tailgate of her truck. Bunker

exchanged words with her son while Larsen stood by silently. 

Within three or four minutes, the police arrived. When the

police began to approach, Bunker “reached in his pants

pocket or shirt and tossed a knife under [a] car”5 near where

he was standing. Meanwhile, Larsen “just stood there, kind

of, dumbfounded. Then turned and walked away.” She

testified that she could see him well and that she did not see

anything in his hands.

 

5

 Mrs. McNutt then corrected herself, stating: “I don’t know if it was a

knife. I’m just hearing something hit through – a metal, clank, skidding,

you know, noise, but I don’t know what it was.”
LARSEN V. SOTO 13

Although she saw Larsen being placed in a patrol car,

Mrs. McNutt did not make inquiries because the officers were

busy and “were telling people to leave.” Had she known that

the officers were arresting Larsen for throwing the object

under the 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 Larsen’s defense at trial

had she been asked to do so.

On cross-examination, Mrs. McNutt clarified that it was

just beginning to get dark when she arrived at the bar;

because it was June, she estimated that would have been

around 8:00. She thought that they had gone into the bar for

one or two drinks after the police left, though she “[couldn’t]

be positive that far, long ago”; in any event, she did not

“think [they] were there a long time, because [her] husband

was, pretty, you know, upset.” She recalled the parking lot

being lit by street lights, but did not recall any flood lights

from police cars or the presence of any helicopters. She also

saw that her husband was “fondled” by a police officer, and

could not believe what was happening. She stated that an

officer grabbed her by the hair, but she did not complain

through any official channels because “it doesn’t do a lot of

good to call LAPD, from what I heard.” She also testified

that her eyes were not on Bunker or Larsen for the entire

incident, because she “scanned” the area to see everything

that was going on.

Finally, Larsen called Brian McCracken to testify. 

McCracken began by revealing that he was convicted of

conspiracy in 1990 and then in 1998 for being a felon in

possession of a firearm. He has not been arrested since 2001,

and at the time of the hearing was employed making aircraft

components. McCracken was alone at the Gold Apple bar on
14 LARSEN V. SOTO

the night in question. He knows Daniel Larsen, who was also

at the bar that night. He recounted that a man other than

Larsen approached him in the bar; they exchanged words, and

the man “flashed a knife.” The man said, “You know, I could

kill you right now.” McCracken described the knife as

double-edged and about four to five inches long. It had

“something that could have come over your thumb and index

finger”–“a hand protector.” He was then shown a photograph

of a knife that was found in Larsen’s trial counsel’s file, and

testified that it “looks pretty similar” to the knife he saw at

the bar. He never saw Daniel Larsen with a knife that

evening. Though McCracken and the man with the knife

resolved their dispute without an altercation, the bartender

informed McCracken that she had called the police. He was

not in the parking lot when Larsen was arrested. McCracken

testified that Larsen later called him from jail, and he told

Larsen, “I know you didn’t have the knife that night. Have

your lawyer get a hold of me.”

On cross-examination, when asked what the man with the

knife looked like, McCracken stated that he was short with

brown hair and a medium build. After McCracken stated that

he could not remember certain details about the man’s

appearance because ten years had elapsed, he was asked

whether “it would be hard to also remember what the knife

looked like”; he responded, “No, I remember the blade

distinctly because when somebody says, you know: I could

kill you right now, and then they show you something, that

one particular moment just stuck in my mind.” He had

known Larsen for about fifteen years, but they were not close

friends. Larsen presumably called him from jail only because

Larsen was aware that McCracken would have known that

Larsen did not have the knife on the night of the arrest. He

admitted that he had not seen anyone in the parking lot throw
LARSEN V. SOTO 15

an object and was not present when the police arrived. 

McCracken thought he may have had one beer before seeing

the knife, and had drunk one or two beers total that night. He

waited to leave the bar until he was certain the police had left,

and ultimately left around 9:30.

Based on the evidence before her, Magistrate Judge Segal

recommended that the district court deny the Warden’s

motion to dismiss Larsen’s habeas petition as untimely. She

concluded that, in light of the evidence Larsen presented, “no

reasonable juror would have found Petitioner guilty beyond

a reasonable doubt.” The district court adopted that

recommendation.

Magistrate Judge Segal then held a second evidentiary

hearing on Larsen’s ineffective assistance of counsel claim. 

Finding that Larsen “clearlyreceived ineffective assistance of

counsel” because his trial counsel failed to present any

evidence in Larsen’s defense, she recommended that the

district court grant the First Amended Petition and order the

Warden to release Larsen or retry him within ninety days. 

Over the State’s objections, the district court granted the First

Amended Petition, remanding Larsen’s case for a new trial in

state court within ninety days, unless the state decided not to

retry him. The Warden appealed.

II.

We review de novo the district court’s decision to grant

or deny a petition for a writ of habeas corpus. Lambert v.

Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). “Factual

findings and credibility determinations made by the district
16 LARSEN V. SOTO

court in the context of granting or denying the petition are

reviewed for clear error.” Id.6

The Warden does not appeal the district court’s grant of

relief on the merits of Larsen’s ineffective assistance claim. 

Nor does he pursue a claim that the evidentiary hearings held

before Magistrate Judge Segal were improper under Cullen v.

Pinholster, 131 S. Ct. 1388 (2011). The Warden 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 proceedings). Thus, the only issue before

us is whether the district court properly denied the Warden’s

motion to dismiss Larsen’s petition as beyond AEDPA’s

limitation period.

III.

A.

As an initial matter, we must determine the effect, if any,

of the Supreme Court’s recent decision in Perkins on

Larsen’s appeal. The Court held that “actual innocence, if

proved, serves as a gateway through which a petitioner may

6 We reject the Warden’ssuggestion that we should somehow review the

district court’s credibility determinations de novo. While it is true that the

question whether Larsen has satisfied the Schlup standard is a legal

question that we review de novo, that is a distinct inquiry from the

question whether the witnesses testified credibly to facts within their

knowledge. The district court is entitled to deference on the latter point. 

See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). The

district court determined “that the McNutts were credible and persuasive

witnesses” and that “McCracken also gave credible testimony.” The

Warden provides no reason to conclude that these determinations were

clearly erroneous, and thus we leave them undisturbed.
LARSEN V. SOTO 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 gateway claim,

should count unjustifiable delay on a habeas petitioner’s part,

not as an absolute barrier to relief, but as a factor in

determining whether actual innocence has been reliably

shown.” Id. Seizing on this language, the Warden urges us

to remand to the district court for reconsideration of Larsen’s

claim in light of Perkins. He argues that, because it did not

have the benefit of the Court’s ruling at the time it considered

Larsen’s petition, the district court ran afoul of Perkins by

consideringLarsen’s diligence “discretely” and not as a factor

going to the credibility of his new evidence. Cf. id. at 1936.

We are not persuaded that remand is necessary. Were the

district court’s reasoning tainted by legal error that prevented

it from properly analyzing the question before it, remand

would be proper. See Johnson v. Bay Area Rapid Transit

Dist., — F.3d —, 2013 WL 3888840 at *10 (9th Cir. July 30,

2013). But that is not the case here. Rather, the Report and

Recommendation approved by the district court expressly

analyzed whether Larsen’s delay in filing his federal habeas

petition undermined the credibility of his new evidence, and

concluded that it did not. The Magistrate Judge rejected the

Warden’s argument that Larsen’s actual innocence claim was

not credible because “no petitioner who is actually innocent

would choose to remain silent about his federal habeas claims

for more than a year.” Even without the benefit of Perkins,

the Magistrate Judge recognized that a belated assertion of

innocence, coupled with new evidence, could undermine an

actual innocence claim. However, she rejected that argument

in Larsen’s case because he “did not remain silent about his

innocence.” The Magistrate Judge found:
18 LARSEN V. SOTO

At trial, [Larsen] pled not guilty. In his

declaration in support of his Petition, [Larsen]

stated that he asked his trial attorney to

present exculpatory evidence from Hewitt,

Owen, and others. When [Larsen] became

aware of the McNutts’ exculpatory testimony,

he asked his trial attorney to move for a new

trial and unequivocallystated, “I’m innocent.”

[Larsen] continued to assert his innocence

after his conviction. Between his conviction

in 1999 and the start of the California

Innocence Project’s representation in 2002,

[Larsen] contacted nine different attorneys or

legal organizations for assistance in proving

his innocence.

The Magistrate Judge also evaluated the witness testimony

supporting Larsen’s evidence and found it credible:

Not only has [Larsen] consistently proclaimed

his own innocence, but Petitioner’s supporting

witnesses have as well. The McNutts, who

appear to have no other connection with

[Larsen], have testified credibly to [Larsen]’s

innocence for approximately eight years. In

statements made informally, under oath in a

declaration, and under oath in live testimony

before the Court, the McNutts have

maintained a consistent version of events.

The district court considered this reasoning and adopted the

Magistrate Judge’s conclusion that:
LARSEN V. SOTO 19

This appears to be one of the “extraordinary

cases where the petitioner asserts his

innocence and establishes that the court

cannot have confidence in the contraryfinding

of guilt.” Johnson[ v. Knowles], 541 F.3d

[933,] 937 [(9th Cir. 2008)].

Contrary to the Warden’s argument, the analysis in the

Report and Recommendation demonstrates that diligence was

not considered “only discretely.” The Magistrate Judge made

findings upon which she and the district court concluded that

Larsen’s delay in filing did not show that his evidence was

unreliable, but was rather explained by his defense attorney’s

failures and his subsequent attempts to acquire appropriate

legal representation. The Magistrate Judge then concluded

that Larsen’s evidence was reliable because it has remained

substantively consistent for over a decade. This is perfectly

consistent with the Court’s teaching in Perkins that

“[u]nexplained delayin presenting new evidence bears on the

determination whether the petitioner has made the requisite

showing.” 133 S. Ct. at 1935 (emphasis added). In short, it

is simply implausible that Perkins would alter the district

court’s conclusions about the credibilityof Larsen’s evidence,

because the district court already undertook the precise

analysis that Perkins prescribes.

B.

Alternatively, the Warden urges us to independently

conclude, on the basis of Perkins, that Larsen’s delay in filing

a federal habeas petition diminishes the credibility of his

“new” evidence. He contends that Larsen has failed to

explain why he delayed from his conviction in 1999 until his
20 LARSEN V. SOTO

first state habeas petition in 2005 to present his new evidence. 

We disagree.

First, the evidence is not really new. As discussed supra,

Larsen’s federal habeas petition was the culmination of his

unbroken efforts over many years to prove his innocence

using evidence he knew could exonerate him but which his

attorney incompetently failed to present at trial. Second, the

Warden stretches the record by claiming that, by 1999 or

2000, Larsen had all the information he needed (and all the

legal assistance required) to collaterally attack his conviction

on the basis of actual innocence. The Warden notes that

Larsen averred in a declaration submitted to the California

Supreme Court that he was aware of the McNutts “after [his]

conviction but before [he] was sentenced.” He also points out

that in his First Amended Petition in federal court, Larsen

stated that the McNutts gave a written statement to Larsen’s

girlfriend “dated September 21, 2001.” Further, the Warden

notes that Larsen declared before the California Supreme

Court that he “had engaged a civil attorney . . . to help [him]

prove [his] innocence” as of September 2000, and that the

civil attorney, Bradley Gage, helped him find another

attorney named Charles Linder to “write [his] habeas

petition.” Given Larsen’s awareness of exculpatorywitnesses

and the fact that he had the assistance of counsel during the

relevant period, the Warden contends that Larsen should have

presented his evidence of innocence earlier than 2005 and has

not explained his failure to do so.

This argument is unavailing. First, as the Warden

acknowledges, Linder only agreed to prepare Larsen’s habeas

petition “in exchange for five percent of the proceeds of [his]

civil case” against the State. Linder and Gage then

abandoned Larsen after “a California Supreme Court case
LARSEN V. SOTO 21

came down that made it impossible for us to win a civil suit

until after [Larsen’s] innocence was proven in an evidentiary

hearing.” Thus, it is misleading for the Warden to suggest the

record shows Larsen “had counsel helping him to prove his

innocence as early as 2000” based on his retention of Gage

and Linder. Second, as the Magistrate Judge found, Larsen

contacted numerous legal organizations between 1999 and the

start of the California Innocence Project’s representation in

2002. That it took Larsen several years to find attorneys to

properly develop and present his claims does not undermine

the credibility of his evidence.

Next, the Warden argues that Larsen has not explained

why it took the California Innocence Project three years from

2002 (when it began representing him) until 2005 to file his

habeas petition. The Warden suggests that Larsen’s “timing

is all the more suspect because he waited to present his

evidence of a third-party perpetrator . . . until after the statute

of limitations expired for prosecuting that person for carrying

a concealed weapon.” These arguments are likewise

unpersuasive. First, it is inexplicable that Larsen would have

willingly allowed the limitations period on his own habeas

petition to expire while he remained incarcerated in order to

spare William Hewitt from charges of carrying a concealed

weapon, and the Warden does not even attempt to offer an

explanation. When Larsen filed his state petition in 2005, Lee

and Perkins had not been decided, so a choice to delay filing

the petition carried the strong likelihood that federal law

could have developed to bar untimely filings notwithstanding

a credible claim of actual innocence. Furthermore, three

years to locate witnesses scattered across the country, gather

declarations, and file Larsen’s petition is not so lengthy a

time as to be unreasonable. Certainly, that his attorneys were

thorough in preparing his petition does not undermine the
22 LARSEN V. SOTO

reliability of Larsen’s evidence. And at any rate, the Warden

has not explained why the California Innocence Project

would choose to become complicit in Larsen’s supposed

scheme to spare Hewitt from prosecution by delaying in filing

the petition.

Most importantly, the Warden has not explained how any

delay in filing by Larsen has prejudiced the State or

benefitted Larsen. In fact, as Larsen’s counsel pointed out at

oral argument, even the Warden’s own argument suggests

that Larsen is in fact innocent: if Larsen delayed filing his

petition to protect Hewitt, then Hewitt (and not Larsen) must

in fact be the guilty party. None of the Warden’s arguments

in any way diminish the credibility of Larsen’s evidence. For

example, the Warden has not argued that any prosecution

witnesses who testified at Larsen’s trial have since died or

become unavailable. Cf. Perkins, 133 S. Ct. at 1936. In

essence, the Warden’s position amounts to an argument that

delay is a per se indication that Larsen’s evidence is not

credible. That is a close cousin of the argument the State of

Michigan advanced in Perkins that petitioners claiming actual

innocence should be subjected to a “threshold diligence

requirement”—an argument the Supreme Court concluded

“makes scant sense.” Id. at 1935.

In short, delay is relevant if it is “[u]nexplained” or

“unjustified,” id., and if it “bear[s] on the probable reliability

of [the petitioner’s] evidence,” Schlup, 513 U.S. at 332. 

Larsen’s alleged “delay” is explained and readily

understandable, and the Warden presents no plausible reason

why his late filing detracts from the credibility of his

witnesses, who have never deviated from their description of

events on June 6 at the Gold Apple bar. The Magistrate

Judge who oversaw the evidentiary hearings in the district
LARSEN V. SOTO 23

court concluded just the opposite, finding that Larsen’s

consistent and dogged attempts to prove his innocence and

the consistency of his witnesses’ testimony over a period of

years bolstered the reliability of his innocence claim. These

findings are not clearly erroneous, and nothing in Perkins

points to a different conclusion. We thus turn to the question

whether Larsen’s new evidence of innocence is enough to

permit consideration of his federal claim on the merits.

IV.

A.

To present otherwise time-barred claims in federal court,

a petitioner must produce proof of his innocence that is

sufficient to convince a federal court that a failure to entertain

his claim would constitute a fundamental miscarriage of

justice. Lee, 653 F.3d at 937–38. This “fundamental

miscarriage of justice” doctrine has been described as “a

gateway through which a habeas petitioner must pass to have

his otherwise barred constitutional claim considered on the

merits.” Herrera v. Collins, 506 U.S. 390, 404 (1993).

“To pass through the Schlup gateway, a ‘petitioner must

show that it is more likely than not that no reasonable juror

would have convicted him in the light of the new evidence.’”

Lee, 653 F.3d at 938 (quoting Schlup, 513 U.S. at 327). “This

exacting standard ‘permits review only in the ‘extraordinary’

case,’ but it ‘does not require absolute certainty about the

petitioner’s guilt or innocence.’ Id. (quoting House, 547 U.S.

at 538). “To be credible, such a claim requires petitioner to

support his allegations of constitutional error with new

reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical
24 LARSEN V. SOTO

physical evidence—that was not presented at trial.” Schlup,

513 U.S. at 324. We have held that “where post-conviction

evidence casts doubt on the conviction by undercutting the

reliability of the proof of guilt, but not by affirmatively

proving innocence, that can be enough to pass through the

Schlup gateway to allow consideration 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 precedents holding that a habeas petitioner

satisfied its strictures have typically involved dramatic new

evidence of innocence. In House, for instance, DNA

evidence established that semen found on a murder victim

came from the victim’s husband and not from House, see

547 U.S. at 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. at 548. In

Carriger, the prosecution’s chief trial witness had confessed

in open court that he himself (and not Carriger) had

committed the murder for which Carriger had been convicted. 

See 132 F.3d at 471–72. In contrast, we have denied access

to the Schlup gateway where a petitioner’s evidence of

innocence was merely cumulative or speculative or was

insufficient to overcome otherwise convincing proof of guilt. 

See, e.g., Lee, 653 F.3d at 943–46; Sistrunk, 292 F.3d at

675–77. Thus, to satisfy Schlup, the petitioner’s new

evidence must convincingly undermine the State’s case. 

However, definitive, affirmative proof of innocence is not

strictly required. As we explained in Carriger, a Schlup

claim “is procedural, not substantive”: a petitioner’s new

evidence must be sufficient to undermine a court’s confidence
LARSEN V. SOTO 25

in his conviction, but not to erase any possibility of guilt. 132

F.3d at 478.

B.

Larsen has satisfied this demanding standard. None of the

Warden’s arguments can overcome the simple, crucial fact

that Larsen produced witnesses who were never called to

speak on his behalf at his trial and who gave credible

testimony that someone other than Larsen committed the acts

for which he was convicted and sentenced, while Larsen

stood nearby and did nothing at all, much less a criminal act. 

Larsen’s claim of innocence lies at the core of the

“miscarriage of justice” doctrine: it generates “sufficient

doubt about the validity of his conviction to satisfy Schlup

and permit consideration of his constitutional claims.” Id. 

We conclude that it is more likely than not that no reasonable

juror hearing all of the evidence Larsen presented in federal

court would vote to convict him under the beyond-areasonable-doubt standard.

The Warden fails to offer any contradictory evidence. He

merely offers several different arguments in a weak attempt

to show that Larsen has not met his burden. First, he claims

that the Magistrate Judge misapplied the applicable legal

standards by resting her recommendation on her own

subjective lack of confidence in the verdict, rather than an

objective determination of what a reasonable jury would do

given the newly supplanted record. In Schlup, the Supreme

Court observed that “[i]t is not the district court’s

independent judgment as to whether reasonable doubt exists

that the standard addresses; rather the standard requires the

district court to make a probabilistic determination about

what reasonable, properly instructed jurors would do.” 
26 LARSEN V. SOTO

513 U.S. at 329. However, the Magistrate Judge made an

objective determination when she concluded that, “had the

jury been able to consider” the evidence presented at the

evidentiary hearing, “‘no reasonable juror would have found

Petitioner guilty beyond a reasonable doubt.”

That the Magistrate Judge also referenced her own lack of

confidence in the verdict does not render her analysis legally

erroneous. Indeed, this same language has been employed

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 also satisfied that the trial was free

of nonharmless constitutional error, the petitioner should be

allowed to pass through the gateway and argue the merits of

his underlying claims.” (emphasis added)); accord Majoy v.

Roe, 296 F.3d 770, 775–76 (9th Cir. 2002). This “confidence

in the outcome” formulation is simply another way of

describing Schlup’s “no reasonable juror” standard, and one

that courts have used for decades. Certainly, it was not

reversible error for the district court to employ language that

has been endorsed both by the Supreme Court and by our

court.

Next, the Warden argues that Larsen has failed to satisfy

Schlup because nothing in the evidentiary hearing testimony

is incompatible with his conviction. This argument by the

Warden appears to have evolved over the life of his appeal. 

In his opening brief, the Warden argued that the McNutts

may have been relating a completely separate incident from

that discussed by the police officers in their trial testimony. 

For instance, while the McNutts testified that the events they

witnessed occurred around 7:30 or 8:00 p.m., Officer Rex
LARSEN V. SOTO 27

testified at trial that Larsen was arrested at 12:30 a.m. The

Warden contends that it “strains credulity” to think that a

middle-aged couple would meet their adult son at a bar that

late at night. Coupled with the fact that the McNutts did not

recall seeing flood lights or helicopters, the Warden contends,

the McNutts’ testimony about the time suggests that theymay

not have been present at all for the events in question.

It is the Warden’s argument here that “strains credulity.” 

Both McNutts testified that while they were at the Gold

Apple bar, they witnessed an altercation in the parking lot,

that numerous police officers thereafter arrived on the scene,

that someone threw a metallic object under a nearby car, and

that Daniel Larsen was placed in the back of a patrol car. For

the McNutts to have witnessed a separate incident, all of

these occurrences would have had to repeat themselves within

a period of a few hours at the same exact location; indeed,

this version of events would require Larsen to have been

arrested twice on the same day at the same bar. It is far more

likely that the McNutts witnessed the same incident discussed

at Larsen’s trial. Both McNutts expressed uncertainty about

the time of night in their testimony, and did not purport to be

definitive about the time of the incident. Similarly, they

stated that they did not recall hearing helicopters or seeing

floodlights, but as the Magistrate Judge noted, that “[t]he

McNutts, eleven years later, did not remember what lights

they saw or what sirens they heard” constituted “minor

discrepancies that do not cast doubt on the McNutts’ clear

and consistent memories of seeing Bunker, not Petitioner,

throw the object.”

In his post-Perkins supplemental brief, the Warden argued

that the evidentiary hearing testimony is not inconsistent with

Larsen’s conviction because none of his witnesses actually
28 LARSEN V. SOTO

testified that they saw Hewitt throw a knife. It is true that

while both McNutts testified that Hewitt threw a metallic

object under a car in the parking lot, neither testified with

certainty that the object was a knife. However, both McNutts

testified that Larsen had nothing in his hands and did not

throw any object, while Hewitt did throw an object that Mr.

McNutt specifically said could not have been a copper

weight—the only other object found in the parking lot that

night. The Warden further points to Mrs. McNutt’s

admission that she “looked at every direction, like what was

going on,” when the police arrived at the scene, and argues

that a reasonable juror could have inferred that Mr. McNutt

was probably not paying much attention to Larsen during the

commotion. But that it may have been physically possible for

Larsen to throw a knife during a split second when neither of

the McNutts was paying attention does not defeat Larsen’s

Schlup claim. Rather, that multiple credible witnesses saw a

different person take the same actions that Larsen was

accused of taking—throwing a metallic object under a nearby

car—suggests that the police were mistaken about the identity

of the person who threw the knife. No reasonable juror

confronted with such evidence would be convinced beyond

a reasonable doubt of Larsen’s guilt.7

7 The Warden also argues that the McNutts may have been biased, either

against the LAPD (because of certain officers’ alleged mistreatment of the

McNutts at the scene) or against Hewitt (whom they testified was acting

in a hostile manner toward their son). But as the Magistrate Judge found,

a reasonable juror would be much more likely to conclude that a former

law enforcement official and military veteran and a woman with

degenerative health problems would not spend a decade consistently

providing exculpatory testimony on behalf of someone with whom they

lacked any meaningful personal ties, culminating with a cross-country trip

to testify at the evidentiary hearing, in order to retaliate against Bunker or

the LAPD for a decade-old slight.
LARSEN V. SOTO 29

The Warden also argues that McCracken’s admission that

he was previously convicted of felonies would have

undermined his credibility in the eyes of the jury, especially

in comparison to the police officers who testified for the

prosecution. Even assuming that McCracken’s convictions

suggest that he is generally dishonest, the testimony of

individuals who have been convicted of felony offenses is not

always to be disbelieved. McCracken’s testimony is to be

viewed not only in light of the contradictory testimony of the

police offers, but also in light of the clear testimony of the

McNutts and, to a lesser extent, the declarations of Jorji

Owen and William Hewitt. Moreover, the Warden does not

offer any reason why McCracken would risk criminal

consequences by perjuring himself for Larsen’s benefit. 

Indeed, McCracken gave uncontradicted testimony that he

was not a close friend of Larsen’s.

The Warden also argues that “none of the evidence

presented at the federal evidentiary hearing adequately

accounts for the fact that Petitioner, when arrested at the

scene, gave the police a false name.” But beyond a

perfunctory reference to the notion that “a truly innocent man

would have had no reason to lie to police about his identity,”

the Warden does not explain why this false statement

undermines anyof the newly presented evidence of innocence

adduced at the evidentiary hearing. Even if Larsen’s use of

a pseudonym suggests consciousness of guilt in some general

sense, it cannot independently support a finding of guilt

beyond a reasonable doubt for the specific crime of which

Larsen was convicted. Moreover, it is undisputed that Larsen

had prior convictions, and he may have had any number of

reasons to try to avoid providing his true identity to the

police. These might include averting arrest for a crime he did

not commit.
30 LARSEN V. SOTO

Finally, the Warden argues that none of Larsen’s new

evidence undermines the trial testimony of Officers Rex and

Townsend, who identified Larsen as the man who threw the

knife. However, despite the Warden’s repeated arguments

that a “swearing match” between prosecution and defense

witnesses is insufficient to satisfy Schlup, it never

meaningfully explains how a jury faced with evidence from

five different witnesses that a different person threw the knife

could nonetheless have concluded that Larsen was guilty

beyond a reasonable doubt. If the fact that prosecution

witnesses testified against the defendant at trial were

sufficient to defeat any actual innocence claim, the Schlup

doctrine would be meaningless.

Indeed, Schlup itself is to the contrary. In that case, two

corrections officers, Flowers and Maylee, testified that

Schlup was involved in a jailhouse murder. See Schlup,

513 U.S. at 302 (“The State produced no physical evidence

connecting Schlup to the killing, and no witness other than

Flowers and Maylee testified to Schlup’s involvement in the

murder.”). Like Larsen’s, “Schlup’s defense was that the

State had the wrong man.” Id. at 303. The district court had

“concluded that the affidavits presented by Schlup,” in which

prisoners who had witnessed the crime contradicted the

officers, “when considered against the positive identifications

made by Flowers and Maylee, failed to constitute a

sufficiently persuasive showing of actual innocence.” Id. at

309 n.19. The Supreme Court disagreed and remanded for

further proceedings, expressly holding that a “petitioner’s

showing of innocence is not insufficient solely because the

trial record contained sufficient evidence to support the jury’s

verdict.” Id. at 331. Likewise, Larsen’s “post-conviction

evidence casts doubt on the conviction by undercutting the

reliability of the proof of guilt,” even if it does not
LARSEN V. SOTO 31

“affirmatively prov[e] innocence”; “that can be enough to

pass through the Schlup gateway to allow consideration of

otherwise barred claims.” Sistrunk, 292 F.3d at 673. 

Larsen’s evidence more than suffices.

The district court already held that Larsen’s conviction is

constitutionally untenable because he received ineffective

assistance of counsel at trial, and the Warden has not

appealed that ruling. Rather, the Warden has argued only that

Larsen’s habeas petition should not have been considered at

all because it was untimely. Because we hold otherwise,

Larsen is entitled to the writ of habeas corpus entered by the

district court.

V.

When a state prisoner challenges his conviction in federal

court, we must be “careful to limit the scope of federal

intrusion into state criminal adjudications and to safeguard

the States’ interest in the integrity of their criminal and

collateral proceedings.” Williams v. Taylor, 529 U.S. 420,

436 (2000). Congress passed AEDPA, including its stringent

statute-of-limitations provision, to “further [these] principles

of comity, finality, and federalism.” Id.

However, as the Supreme Court has repeatedly

recognized, “in appropriate cases [these] principles of comity

and finality . . . must yield to the imperative of correcting a

fundamentally unjust incarceration.” Murray v. Carrier,

477 U.S. 478, 495 (1986) (internal quotation marks omitted). 

This is such a case. Because we conclude that Larsen has met

the demanding Schlup standard, we must exercise the

“‘equitable discretion’ of habeas courts to see that federal

constitutional errors do not result in the incarceration of
32 LARSEN V. SOTO

innocent persons.” Herrera, 506 U.S. at 404 (quoting

McCleskey, 499 U.S. at 502).

AFFIRMED.