FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LAMERLE R. JOHNSON, 

No. 07-15221 Petitioner-Appellant,

D.C. No.

v.  CV-02-05309-JSW

MIKE KNOWLES, Warden, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

May 12, 2008—San Francisco, California

Filed September 2, 2008

Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins,

and M. Margaret McKeown, Circuit Judges.

Opinion by Judge O’Scannlain

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COUNSEL

Mark D. Eibert, Half Moon Bay, California, argued the cause

for the petitioner-appellant and filed briefs. 

Peggy S. Ruffra, Supervising Deputy Attorney General of the

State of California, San Francisco, California, argued the

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cause for the respondent-appellant and filed a brief; Edmund

G. Brown, Attorney General of the State of California, Dane

R. Gillette, Chief Assistant Attorney General, Gerald A.

Engler, Senior Assistant Attorney General, and Gregory A.

Ott, Deputy Attorney General, San Francisco, California,

were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We must decide whether a claim of miscarriage of justice

excuses an untimely filed habeas petition where the petitioner

does not allege actual innocence. 

I

A

LaMerle R. Johnson was charged in California state court

with kidnap for ransom, robbery, assault with a deadly

weapon, and use of a firearm. While incarcerated and awaiting trial, he learned of a murder plot between two fellow

inmates. Johnson informed the authorities of his discovery

and thereafter entered into a plea agreement that he would testify against the individuals involved in the plot in exchange

for pleading guilty to the charges and serving a sentence of

just over 17-and-a-half years’ imprisonment. 

Pursuant to the plea agreement, Johnson testified against

both of the individuals involved in the murder plot at their

preliminary hearings. Thereafter, one of the plotters went to

trial, and Johnson also testified during these proceedings.

Although the exact chronology is unclear, Johnson alleges

that “law enforcement officers” employed at the jail where he

was being housed during the trial threatened to kill him if he

12040 JOHNSON v. KNOWLES
continued testifying for the state. Johnson asserts the officers

beat him and threatened to place him in a cell with the plotting individuals and to ensure that he was labeled a snitch

when he ultimately went to prison. 

As a result of such threats, Johnson recanted his trial testimony. The prosecutor learned of the threats against Johnson,

however, and he convinced Johnson to explain in open court

what happened to him and why he had changed his testimony.

Johnson also reaffirmed his initial trial testimony, and the trial

court ordered that he be moved to a different jail. 

After these events, the defense attorney representing the

plotter on trial moved to strike Johnson’s trial testimony as

unreliable. The prosecutor objected, explaining that “the system failed [Johnson] ultimately, because I’m responsible for

any witness’ safety ultimately. And the fault is mine; not his.”

The trial court denied the motion and allowed the jury to consider Johnson’s testimony. Ultimately, the trial ended with a

hung jury. 

After the trial, the prosecutor moved to rescind Johnson’s

plea agreement because Johnson committed perjury when he

recanted his trial testimony. Following advice of counsel,

Johnson did not oppose the prosecutor’s motion. Thereafter,

Johnson learned that his own attorney had previously represented the second plotting individual against whom Johnson

had testified only at the preliminary hearing. Johnson was

ultimately tried and convicted and sentenced to life-plus-11-

years’ imprisonment. 

B

In November 2002, Johnson filed a pro se federal habeas

petition, primarily challenging the revocation of his plea

agreement and asserting ineffective assistance of counsel. The

State moved to dismiss such petition as untimely under the

Anti-Terrorism Effective Death Penalty Act’s (“AEDPA”)

JOHNSON v. KNOWLES 12041
one-year statute of limitations, 28 U.S.C. § 2244(d)(1)(A).

The district court granted the motion, finding Johnson’s petition was filed more than three years after the limitations

period had run. The district court further held that statutory

tolling and equitable tolling did not apply. 

In his first appeal to this court, Johnson conceded that he

failed to comply with AEDPA’s one-year limitations period,

but he argued that the district court erred in concluding that

tolling does not apply. In a memorandum disposition, we

affirmed the district court as to equitable tolling, but we concluded the record was unclear regarding whether statutory

tolling was calculated correctly, and we remanded to the district court for further proceedings. Johnson v. Knowles, 116

Fed. Appx. 822, 823-24 (9th Cir. 2004). 

On remand, Johnson filed a supplemental brief in which he

conceded that he was not entitled to statutory tolling. Nevertheless, he argued that his untimeliness should be excused

under the miscarriage of justice exception. Specifically, he

argued that the State’s revocation of the plea agreement after

he had testified at his peril and his own attorney’s conflict of

interest resulted in his being unfairly held in prison longer

than he should have been. The district court disagreed and

again dismissed the petition as untimely. 

Johnson filed a timely notice of appeal and request for certificate of appealability (“COA”), which the district court

denied. Thereafter, we granted a COA solely on the issue of

whether the miscarriage of justice exception applies here, and

we sua sponte appointed counsel for Johnson. 

II

[1] The parties agree that Schlup v. Delo, 513 U.S. 298

(1995), governs the miscarriage of justice exception. In Schlup, a capital habeas case, the petitioner argued a miscarriage

of justice would occur if the court failed to reach the merits

12042 JOHNSON v. KNOWLES
of his otherwise defaulted ineffective assistance of counsel

and Brady claims in light of newly discovered evidence demonstrating his actual innocence. See id. at 307-09. Initially, the

Supreme Court noted the difference between this type of

claim and pure factual innocence claims, like those presented

in Herrera v. Collins, 506 U.S. 390 (1993), where the petitioner alleged innocence in spite of being afforded “entirely

fair and error free” proceedings. Schlup, 513 U.S. at 313-14.

Herrera claims are constitutional claims in and of themselves.

Id. at 315. Schlup claims, on the other hand (sometimes

referred to as procedural innocence claims), are not themselves constitutional claims, “but instead a gateway through

which a habeas petitioner must pass to have his otherwise

barred constitutional claim considered on the merits.’ ” Id.

(quoting Herrera, 506 U.S. at 404). 

[2] In order to pass through the Schlup gateway, the petitioner must establish that his case “falls within the narrow

class of cases . . . implicating a fundamental miscarriage of

justice.” Id. at 314-15 (internal quotation marks omitted).

Tracing the history of its jurisprudence on this issue, the

Court noted that it has “explicitly tied the miscarriage of justice exception to the petitioner’s innocence.” Id. at 321

(emphasis added). The Court further explained: 

Without any new evidence of innocence, even the

existence of a concededly meritorious constitutional

violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court to

reach the merits of a barred claim. 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. 

JOHNSON v. KNOWLES 12043
Id. at 316. Thus, in defining the standard of proof required to

assert the miscarriage of justice exception, the Court

instructed that the “petitioner must show that it is more likely

than not that no reasonable juror would have found petitioner

guilty beyond a reasonable doubt.” Id. at 327. 

[3] More recently, the Supreme Court reiterated that the

Schlup standard is designed to “ensure[ ] that petitioner’s case

is truly extraordinary, while still providing petitioner a meaningful avenue by which to avoid manifest injustice.” House v.

Bell, 547 U.S. 518, 537 (2006) (internal quotation marks

omitted). Again, the Court explained: 

In the usual case the presumed guilt of a prisoner

convicted in state court counsels against federal

review of defaulted claims. Yet a petition supported

by a convincing Schlup gateway showing “raise[s]

sufficient doubt about [the petitioner’s] guilt to

undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error”; hence, “a review of the merits of

the constitutional claims” is justified. 

Id. (quoting Schlup, 513 U.S. at 317). 

[4] Following such precedent, we also have limited the

application of the miscarriage of justice exception to cases

where the petitioner alleges innocence. Cook v. Schriro, 516

F.3d 802, 829 (9th Cir. 2008) (holding that “[t]o qualify for

the ‘fundamental miscarriage of justice’ exception to the procedural default rule, . . . [the petitioner] must show that a constitutional violation has ‘probably resulted’ in the conviction

when he was ‘actually innocent’ of the offense) (internal citations omitted, emphasis added); Smith v. Baldwin, 510 F.3d

1127, 1139 (9th Cir. 2007) (en banc) (holding that to establish

a miscarriage of justice exception, the petitioner must show

that his case “fall[s] within the narrow class of cases . . .

[involving] extraordinary instances when a violation probably

12044 JOHNSON v. KNOWLES
has caused the conviction of one innocent of the crime”)

(internal quotation marks omitted, emphasis added). 

[5] Here, Johnson expressly concedes his guilt. In his supplemental brief to the district court, he stated: “San Mateo

County did not cause me to kidnap Ellis Foots, I did that and

never can undo it . . . . I know that I deserved to come to

prison for my actions, and I accept that.” (emphasis added).

However, citing Sawyer v. Whitley, 505 U.S. 333 (1992), and

Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002), Johnson argues

that the miscarriage of justice exception is not limited to cases

where the petitioner’s guilt or innocence is called into question, but applies in any case where the court lacks confidence

in the proceedings. 

In Sawyer, concurring Justices Stevens, Blackmun, and

O’Connor did indicate that “[w]hile the conviction of an innocent person may be the archetypal case of a manifest miscarriage of justice, it is not the only case.” 505 U.S. at 361. But

as just discussed, the majority of the Court has not adopted

this broader view, nor have any of our sister circuits.1

1

See Moore v. Quarterman, ___ F.3d ___, 2008 WL 2640094, *6 (5th

Cir. 2008) (recognizing the miscarriage of justice exception is “narrow”

and only applies where the petitioner shows “a constitutional violation has

probably resulted in the conviction of one who is actually innocent” (internal quotation marks and citation omitted)); Goldblum v. Klem, 510 F.3d

204, 216 (3d Cir. 2007) (same); Cagle v. Norris, 474 F.3d 1090, 1099 (8th

Cir. 2007) (“ ‘Without any new evidence of innocence, even the existence

of a concededly meritorious constitutional violation is not in itself sufficient to establish a miscarriage of justice that would allow a habeas court

to reach the merits of a barred claim.’ ” (quoting Schlup, 513 U.S. at

316)); Anderson v. Benik, 471 F.3d 811, 815 (7th Cir. 2006) (“The

miscarriage-of-justice-exception applies when the petitioner can demonstrate that he is actually innocent.”); Doe v. Menefee, 391 F.3d 147, 161

(2d Cir. 2004) (“[A] petitioner may use his claim of actual innocence as

a ‘gateway,’ or means of excusing his procedural default . . . .” ) (citing

Schlup, 513 U.S. at 315-17)); Horton v. Allen, 370 F.3d 75, 81 n.3 (1st

Cir. 2004) (defining “miscarriage of justice” as “ ‘a constitutional violation that has probably resulted in the conviction of one who is actually

JOHNSON v. KNOWLES 12045
Additionally, Johnson misapplies Majoy. There, we stated

that “[a] petitioner need not show that he is actually innocent

of the crime he was convicted of committing; instead, he must

show that a court cannot have confidence in the outcome of

the trial.” 296 F.3d at 776 (internal quotation marks omitted).

This passage does not stand alone, however. Rather, it comes

from our explanation of the Schlup gateway standard of proof.

The full passage reads: 

Under Schlup, a petitioner’s otherwise-barred claims

[may be] considered on the merits . . . if his claim

of actual innocence is sufficient to bring him within

the narrow class of cases . . . implicating a fundamental miscarriage of justice. In order to pass

through Schlup’s gateway, and have an otherwise

barred constitutional claim heard on the merits, a

petitioner must show that, in light of all the evidence, including evidence not introduced at trial, it

is more likely than not that no reasonable juror

would have found petitioner guilty beyond a reasonable doubt. A petitioner need not show that he is “actually innocent” of the crime he was convicted of

committing; instead, he must show that a court cannot have confidence in the outcome of the trial. 

Id. (internal quotation marks, citations, footnote omitted;

emphasis added). 

[6] Thus, in light of Supreme Court precedent, as well as

our own, we conclude that the miscarriage of justice excepinnocent’ ”) (quoting Schlup, 513 U.S. at 327)); Williams v. Bagley 380

F.3d 932, 973 (6th Cir. 2004) (same); Reid v. True, 349 F.3d 788, 806 (4th

Cir. 2003) (same); Spears v. Mullin, 343 F.3d 1215, 1255 n.33 (10th Cir.

2003) (noting that a showing that the petitioner is “actually innocent” is

required under Schlup); Zeigler v. Crosby, 345 F.3d 1300, 1307-08 (11th

Cir. 2003) (per curium) (“To establish a fundamental miscarriage of justice, a petitioner must show a colorable claim for actual innocence.”). 

12046 JOHNSON v. KNOWLES
tion is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court

cannot have confidence in the contrary finding of guilt. Schlup, 513 U.S. at 317. A petitioner who asserts only procedural

violations without claiming actual innocence fails to meet this

standard.2 Therefore, here Johnson’s concession of guilt is

fatal to his untimely habeas petition. 

AFFIRMED.

2We do not decide whether the miscarriage of justice exception applies

where a defendant claims to be innocent of the conduct upon which an

enhanced sentence is based. See, e.g., Spence v. Superintendent, 219 F.3d

162, 172 (2d Cir. 2000) (“Where a petitioner shows by clear and convincing proof that he is actually innocent of the conduct on which his sentence

is based, the incarceration is fundamentally unjust and the miscarriage of

justice exception to the procedural default bar applies.”); see also Calderon v. Thompson, 523 U.S. 538, 559-60 (1998) (holding miscarriage of

justice exception applies where petitioner shows “ ‘by clear and convincing evidence’ that no reasonable juror would have found him eligible for

the death penalty”). Such issue is not raised in this case. 

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