### In the



# United States Court of Appeals

For the Seventh Circuit

No. 16

‐ 3392

R ICHARD M. A RNOLD

,

Petitioner

‐ Appellant

,

v.

M ICHAEL A. D ITTMANN

, Warden,

Columbia Correctional Institution,

Respondent

‐ Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:15

‐ cv

‐ 01524

‐ NJ

— Nancy Joseph

, Magistrate Judge.

A RGUED A PRIL 5, 2018

— D ECIDED A UGUST 24, 2018

Before K ANNE

, R OVNER

, and H AMILTON

, Circuit Judges

.

R OVNER

, Circuit Judge. Richard M. Arnold appeals the

district court’s order dismissing as untimely his petition for a

writ of habeas corpus. There is no dispute that Arnold’s

petition was filed beyond the one

‐ year deadline established by

28 U.S.C. § 2244(d)(1), but Arnold alleges that his actual2 No. 16

‐ 3392

innocence of the crime for which he was convicted—repeated

sexual assault of a child—supports an equitable exception to

the time limit and allows his late petition. See McQuiggin v.

Perkins

, 569 U.S. 383, 133 S. Ct. 1924 (2013). He relies on the

recantation affidavit of the key prosecution witness against

him—his son—as proof of his innocence. In view of the state

court’s finding that his son’s recantation was cumulative of

evidence that was put before the jury that convicted him, the

district court concluded that Arnold could not meet the

standard for actual innocence set forth in Schlup v. Delo

, 513

U.S. 298, 115 S. Ct. 851 (1995). For the reasons that follow, we

vacate the district court’s judgment and remand for an eviden

‐ tiary hearing on Arnold’s claim of actual innocence.

I.

In 2008, Arnold was convicted of repeated sexual assault of

a child in violation of Wis. Stat. § 948.025(1)(b). The child in

question was his son, M.A., who was the principal witness

against Arnold at trial. M.A. testified that on some 15 to 20

occasions between May 2004 and August 2005, when M.A. was

13 to 14 years old, Arnold initiated and engaged in mutual

masturbation with him. M.A. indicated that these sexual

assaults took place during weekend visits to a rural cabin

belonging to his grandfather (Arnold’s step

‐ father), at times

when his grandfather was occupied outside in the yard or in

one of the outbuildings on the property and M.A. and his

father were in the cabin alone. (M.A. lived with his mother—

who was not married to Arnold—but saw his father every

other weekend at the cabin, where his father was living at the

time.) On those occasions, M.A. testified, Arnold would

summon his son into his (Arnold’s) bedroom, where the twoNo. 16

‐ 3392 3

would watch television and/or play video games for awhile,

and eventually Arnold would initiate the sexual contact.

Arnold took the stand in his own defense and denied that

he had ever touched his son in a sexual manner. Arnold

testified that he did not spend any significant amount of time

in his bedroom and further denied that there were times when

he and his son were alone in the cabin.

Arnold and M.A. were the only two individuals with

personal knowledge of what had transpired between them,

and there was no forensic evidence supporting either party’s

account. So the case came down to a credibility contest

between father and son. Both had substantial criminal histo

‐

ries: Arnold had five prior convictions, and M.A. (who was 17

years old at the time of trial) had a total of six prior convictions

and/or juvenile adjudications of delinquency. The fact but not

the nature of those convictions was disclosed to the jury.

M.A.’s grandfather, at whose cabin the alleged assaults took

place, professed it was possible there were times during M.A.’s

visits when Arnold and M.A. were alone in the cabin, as M.A.

had testified. But he could not otherwise speak to M.A.’s

allegations, beyond saying that M.A. had never indicated that

anything bad was happening to him.

Other witnesses could only recount M.A.’s out

‐ of

‐ court

statements about the alleged abuse. Detective Tom Makurat,

who had interviewed M.A. in February 2006, shortly after M.A.

had first discussed the abuse with a social services counselor,

testified as to what M.A. had told him about the assaults.

M.A.’s statements to Makurat were consistent with M.A.’s trial

testimony. Makurat also testified that when he questioned4 No. 16

‐ 3392

Arnold about his son’s allegations, Arnold had denied them

and insisted that he was never alone with his son in the cabin.

Two witnesses recounted prior alleged statements by M.A.

that were inconsistent with his trial testimony. Lila Mae Behm,

sister to M.A.’s paternal grandmother, testified that M.A. had

told her that nothing had happened between his dad and

himself. Philip Augsburger, who was “best friends” with

Arnold. R. 31

‐ 3 at 508, testified that he had asked M.A. during

a telephone conversation, “Did this happen between you and

your father?” and “[h]e said no.” R. 31

‐ 3 at 506. According to

Augsburger, M.A. explained that he had been angry with his

father when he made the charge.

M.A. in rebuttal testimony denied discussing the sexual

assault allegations in any detail with either Behm or Augs

‐ burger and expressly denied making the inconsistent state

‐

ments they attributed to him.

The defense also elicited testimony aimed at impeaching

the credibility of M.A.’s account more generally. There was

testimony, for example, that Arnold did not spend significant

time inside of the cabin or in his bedroom and typically slept

outside in a tent; that he was often away from the cabin

working, hunting, fishing, or dating his then

‐ girlfriend, Misty

Frank, and frequently went out with friends during the

evening (M.A. had testified that the assaults took place in the

afternoon or evening hours); that the video games were in the

living room of the cabin, where M.A. and his grandfather both

slept, rather than in Arnold’s bedroom; that M.A. would

become angry with his father if he did not spend enough time

with M.A. or agree to buy him something he wanted; and that,No. 16

‐ 3392 5

contrary to M.A.’s testimony, there were unusual characteris

‐

tics of Arnold’s genital area, including a tattoo and multiple

piercings of Arnold’s penis and scrotum.

The jury convicted Arnold on July 17, 2008, at the conclu

‐

sion of the four

‐ day trial. Because Arnold had previously been

convicted of a serious child sex offense (two counts of second

degree sexual assault of a child), Arnold qualified as a

“persistent repeater” under Wis. Stat. § 939.62(2m)(b)(2) &

(2m)(c), and the trial court was required to sentence Arnold to

a term of life in prison without the possibility of parole. The

judge imposed that sentence immediately after the jury

returned its verdict. Judgment was entered on August 12, 2008.

In October 2011, the Wisconsin Court of Appeals affirmed

both the conviction and Arnold’s initial request for post

‐

conviction relief pursuant to Wis. Stat. § 974.02. State v. Arnold

,

No. 2010AP1532

‐ CR, 2011 WL 5061617 (Wis. Ct. App. Oct. 26,

2011) (unpublished). 1 The Wisconsin Supreme Court subse

‐ quently denied Arnold’s petition for review. State v. Arnold

,

810 N.W.2d 221 (Wis. Jan. 24, 2012).

In November 2011, shortly after the Wisconsin Court of

Appeals had affirmed Arnold’s conviction along with the

denial of his first request for post

‐ conviction relief, M.A. signed

1 Wisconsin law provides for a unitary review process pursuant to which

a defendant, following his conviction, first files a post

‐ conviction motion for

purposes of making any challenges to his conviction not already raised and

resolved at trial. Once that motion has been disposed of, he may file a

consolidated appeal of both his conviction and the ruling on his request for

post

‐ conviction relief. § 974.02; see Page v. Frank

, 343 F.3d 901, 905–06 (7th

Cir. 2003).6 No. 16

‐ 3392

a notarized affidavit in the presence of two witnesses (apart

from the notary) in which he recanted the substance of his trial

testimony. At the time that M.A. reported the assaults by his

father, M.A. had been under the supervision of a juvenile court

and participating in a “Kids In Treatment” (“KIT”) program,

based on adjudications that M.A. himself had sexually as

‐

saulted children. In his affidavit, which was directed to Ar

‐

nold’s post

‐ conviction counsel, M.A. represented that he had

falsely accused his father in order to placate KIT personnel and

ensure his successful completion of and discharge from the KIT

program:

I [M.A.] would like to inform you that the charges

against my father Richard Arnold are false. We did

not have any kind of sexual contact. I am sorry for

saying those things happened. I never meant for any

of this to happen. But I felt pressured into saying

those things because if I did not tell them something

I would not have completed my KIT Program. So I

told them that my dad did that so I could get them

off my back and so I could get out of treatment and

off probation and out of coun[se]ling. My dad[‘]s

P.O. also pushed at me because my dad gave me

condoms so if I had sex it would be safe sex. His

P.O. put him in jail for that and said he was not a

good father because he gave me the condoms. I just

wanted everyone to leave me alone so I could get on

with my life and so we could be a family again. But

that didn’t happen because after that my dad[‘]s

P.O. wouldn’t let us have any contact with each

other. But I still continued to go there to see my dadNo. 16

‐ 3392 7

[ ] and grandpa. But most of the time my dad was

with [M]isty and her son so I still did not get to

spend time with my dad. I just want everyone to

know that this was all a big mistake and it was not

true. I made the mistake of lying about this and it

cost all of us a[ ] lot. I hope that you can help get my

dad out of prison so he can come home where he

belongs. He has been locked up long enough for

something that he didn’t do.

I hope that by me coming forward with this now

that it’s not to[o] late for the truth to be told and to

set my dad free.

Appellate Ct. R. 6 at 21–22.

In September 2013, nearly two years after M.A. signed the

affidavit recanting the accusations against his father, Arnold

filed a pro se motion in state court seeking a new trial on the

basis of the affidavit. See Wis. Stat. § 974.06. 2

The circuit court denied the motion without a hearing, R. 1

‐

2 at 7, and the court of appeals affirmed. State v. Arnold

, No.

2013AP2538, 2015 WL 540534 (Wis. Ct. App. Feb. 11, 2015)

(unpublished). The appellate court noted that the trial court

was not required to conduct a hearing on a motion for a new

trial premised on newly discovered evidence if the motion

itself was legally insufficient. Id.

, at *1. In the view of the

appeals court, Arnold’s motion was insufficient in that M.A.’s

affidavit did not constitute newly discovered evidence. Two

2 The record before us is silent as to the reasons for Arnold’s delay in filing

the motion.8 No. 16

‐ 3392

defense witnesses at Arnold’s trial—Behm and Augsburger—

had recounted statements by M.A. to the effect that the sexual

assaults did not occur, and M.A.’s credibility had also been

impeached in other ways. Id. Consequently, “[e]vidence that

the victim fabricated his accusations was before the jury.” Id.

,

at *2.

That Arnold’s Wis. Stat. § 974.06 motion offered the

victim’s recantation in the form of an affidavit does

not change the substance of the recantation or

present a new challenge to the victim’s credibility.

The jury had the opportunity to judge evidence that

the victim recanted to other persons prior to trial

and was otherwise less than credible. The victim’s

affidavit offered the same type of evidence that was

before the jury. Therefore, the victim’s affidavit was

cumulative evidence and could not constitute newly

discovered evidence. Because the record shows that

Arnold was not entitled to relief on his

§ 974.06 motion, the circuit court did not err in

denying the motion without a hearing.

Id., at *2 (citations omitted). The Wisconsin Supreme Court

again denied review. 865 N.W.2d 502 (Wis. June 12, 2015).

Arnold then repaired to federal court seeking relief pursu

‐

ant to 28 U.S.C. § 2254. In his pro se habeas petition, Arnold

contended that the Wisconsin courts’ handling of his request

for a new trial based on M.A.’s affidavit was inconsistent with

his rights under the Sixth and Fourteenth Amendments to the

Constitution, including his right to due process, and that hisNo. 16

‐ 3392 9

actual innocence of the offense of which he was convicted

independently entitled him to relief. R. 1, 2. 3

On the State’s motion, the district court dismissed Arnold’s

petition as untimely. R. 17. Pursuant to 28 U.S.C.

§ 2244(d)(1)(A), a petitioner must seek habeas relief within one

year of the date his conviction becomes final. The court pointed

out because Arnold did not file a petition for certiorari after the

Wisconsin Court of Appeals affirmed his conviction in 2011

and the Wisconsin Supreme Court denied review in early 2012,

Arnold’s conviction became final on April 23, 2012 (once the

90

‐ day period for seeking certiorari from the U.S. Supreme

Court expired, see Ray v. Clements

, 700 F.3d 993, 1003 (7th Cir.

2012)). Arnold thus had until April 24, 2013 to file his habeas

petition. He did not actually file the petition until December 21,

2015, more than two and one

‐ half years after the deadline.

Arnold’s second post

‐ conviction motion, based on M.A.’s

recantation affidavit, had no impact in this regard, as the

motion was not filed until after the one

‐ year deadline for

seeking relief in habeas corpus had already passed. R. 17 at

3–4.

The district court considered whether Arnold’s claim of

actual innocence could excuse the running of the limitations

3 Arnold’s petition also asserted that the state courts had misapplied,

and/or abused their discretion in applying, certain Wisconsin statutory

provisions and had deprived him of his rights to due process and equal

protection under the Wisconsin constitution. But because a section 2254

petition is aimed at vindicating a petitioner’s federal rights, errors of state

law are not cognizable on habeas review. See § 2254(a); see also

, e.g.

, Dellinger

v. Bowen

, 301 F.3d 758, 764 (7th Cir. 2002).10 No. 16

‐ 3392

period, but concluded it could not. The court noted that under

Schlup v. Delo

, supra

, 513 U.S. at 327, 115 S. Ct. at 867, it was

Arnold’s burden to establish that “it is more likely than not

that no reasonable juror would have convicted him in light of

the new evidence” of his innocence. R. 17 at 4. Arnold’s claim

was founded on his son’s recantation affidavit, but the Wiscon

‐

sin Court of Appeals had said that the affidavit “offered the

same type of evidence that was before the jury,” which by

virtue of witness testimony that M.A. had made pre

‐ trial

statements denying that his father had assaulted him, had

necessarily been called upon to evaluate the consistency and

credibility of M.A.’s account. R. 17 at 5 (quoting Arnold

, 2015

WL 540534, at *2). The state court, in other words, had already

engaged in the type of analysis that Schlup mandated of the

district court, and had concluded that M.A.’s recantation

affidavit would not have affected the jury’s verdict. R. 17 at 5.

“Accordingly, because Arnold cannot prove that no reasonable

juror would have convicted him, Arnold cannot satisfy the

requirements for the actual innocence exception.” R. 17 at 5

(emphasis in original). The court went on to deny Arnold’s

request for a certificate of appealability. R. 17 at 5–6.

Arnold filed a notice of appeal, accompanied with a

renewed application for a certificate of appealability and a

request that we appoint counsel to represent him. After an

initial review of the district court’s order and the record on

appeal, this court found that Arnold had “made a substantial

showing of the denial of his right to due process, given new

evidence that the victim fabricated his testimony at trial.”

Appellate Ct. R. 8 (Kanne, J.). We therefore granted the request

for a certificate of appealability and Arnold’s request forNo. 16

‐ 3392 11

appointed counsel. The State subsequently moved to vacate

that order, arguing that whatever potentially meritorious

constitutional claim Arnold might have, the district court’s

finding that Arnold’s habeas petition was untimely resolved

the appeal. We rejected the State’s motion, pointing out that

“the correctness of the court’s assessment of timeliness is

implicated in the constitutional claim we identified, since the

district court held that Arnold had not provided ‘new’ evi

‐

dence demonstrating his innocence that would justify an

exception to the statute of limitations.” Appellate Ct. R. 10.

II.

There is no dispute that Arnold filed his habeas petition

beyond section 2244(d)(1)’s one

‐ year time limit, so his petition

is barred as untimely unless he can establish that he qualifies

for an exception to the time limit. Arnold is relying on his

alleged actual innocence to overcome the time barrier. Actual

innocence is an equitable exception that renders the time limit

set forth in section 2244(d)(1) inapplicable. McQuiggin v.

Perkins

, supra

, 569 U.S. at 386, 133 S. Ct. at 1928; see also Gladney

v. Pollard

, 799 F.3d 889, 895 (7th Cir. 2015). As it happens,

Arnold also wants to pursue a freestanding claim of actual

innocence in his petition, so the allegations of actual innocence

are doing “double duty” in this case both as a gateway to

belated habeas review and as a substantive basis for granting

the writ. Perrone v. United States

, 889 F.3d 898, 903 (7th Cir.

2018).

Schlup establishes the framework for evaluating a claim of

actual innocence as a gateway to review of a habeas claim that

would otherwise be foreclosed by untimeliness or some other12 No. 16

‐ 3392

type of procedural default. See McQuiggin

, 569 U.S. at 386, 133

S. Ct. at 1928. A claim of actual innocence must be both

credible and founded on new evidence. Schlup

, 513 U.S. at 324,

115 S. Ct. at 865. To be credible, the claim must have the

support of “reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence.” Ibid

. That evidence must also be new in the

sense that it was not before the trier of fact. Ibid .; Gladney

, 799

F.3d at 896, 898. The petitioner’s burden is to show that, in light

of this new evidence, it is more likely than not that no reason

‐

able juror would have found him guilty beyond a reasonable

doubt. Schlup

, 513 U.S. at 327, 115 S. Ct. at 867; see also id

. at 329,

115 S. Ct. at 868. In evaluating the claim, the court is to conduct

a comprehensive assessment that takes into account any

reliable evidence probative of petitioner’s innocence or guilt,

even evidence that was previously excluded; the court is not

bound by the rules of evidence that would govern at trial. Id.

at 327–28, 115 S. Ct. at 867. It is not the court’s role to determine

independently what the petitioner likely did or did not do;

rather, its task is to assess the likely impact of the new evidence

on reasonable jurors. Id. at 329, 115 S. Ct. at 868. Although any

delay or lack of diligence by the petitioner in pursuing his

claim of actual innocence is not a bar to the claim, it is among

the factors that the court may consider in assessing the merits

of the claim. McQuiggin

, 569 U.S. at 388–400, 133 S. Ct. at

1935–36.

Although a finding that Arnold has met the Schlup standard

would open the door to habeas review notwithstanding section

2244(d)(1)’s time limit, it is by no means clear that his claim of

actual innocence by itself would entitle him to a writ of habeasNo. 16

‐ 3392 13

corpus. In order to obtain habeas relief, a state prisoner must

show that his conviction violates the Constitution, laws, or

treaties of the United States. Estelle v. McGuire

, 502 U.S. 62,

67–68, 112 S. Ct. 475, 480 (1991). To date, an assertion of actual

innocence based on evidence post

‐ dating a conviction has not

been held to present a viable claim of constitutional error. See

Herrera v. Collins

, 506 U.S. 390, 400–02, 113 S. Ct. 853, 860–61

(1993). The Court in Herrera assumed without deciding that the

Eighth Amendment precludes the execution of a person who

has demonstrated his actual innocence. Id. at 417, 113 S. Ct. at

869; see also id. at 419, 113 S. Ct. at 870 (O’Connor, J., concur

‐ ring); id. at 429, 113 S. Ct. at 875 (White, J., concurring in the

judgment). But neither the Supreme Court nor this court has

yet indicated that an actual innocence claim could, standing

alone, support the issuance of a writ in a non

‐ capital case. See

McQuiggin

, 569 U.S. at 392, 133 S. Ct. at 1931 (“We have not

resolved whether a prisoner may be entitled to habeas relief

based on a freestanding claim of actual innocence.”); Tabb v.

Christianson

, 855 F.3d 757, 764 (7th Cir.), cert. denied

, 138 S. Ct.

365 (2017) (describing issue as “open to debate” and collecting

Supreme Court statements to that effect). 4 Indeed, we recently

4 It is also unsettled what particular standard of proof a petitioner would

have to meet in order to be entitled to relief on a freestanding claim of

innocence. See Herrera

, 506 U.S. at 417, 113 S. Ct. at 869 (“the threshold

showing for such an assumed right would necessarily be extraordinarily

high”); House v. Bell

, 547 U.S. 518, 555, 126 S. Ct. 2064, 2087 (2006) (“The

sequence of the Court’s decisions in Herrera and Schlup —first leaving

unresolved the status of freestanding claims and then establishing the

gateway standard—implies at the least that Herrera requires more convinc

‐ ing proof of innocence than Schlup .”); Tabb

, 855 F.3d at 764.14 No. 16

‐ 3392

characterized as “doubtful” the notion that such a claim could

support relief on collateral review of a conviction. Perrone

, 889

F.3d at 903. 5

But before we could even take up this question, Arnold

would have to pass through the innocence gateway by making

the showing that Schlup requires. Unless he can overcome the

time bar on his habeas petition in that manner, there would be

no need and no authority for us to entertain his habeas

petition, whatever substantive claims for relief it might raise.

Both parties, ultimately, recognize the important role that

an evidentiary hearing will play in assessing Arnold’s claim.

Arnold’s central point on appeal is that the veracity of M.A.’s

affidavit has yet to be reviewed by any court, state or federal,

and that he is entitled to a hearing for that very purpose. For its

part, the State contends in the first instance that M.A.’s

recantation, even if it could meet the Schlup standard, could not

possibly meet the standard for granting relief on a freestanding

claim of actual innocence, whatever that standard might be, see

n.4 supra

, when the recantation is considered along with all of

the evidence supporting Arnold’s conviction. But the State

concedes that if we are not convinced by that argument, we

should remand for an evidentiary hearing before the district

court. As we now explain, we agree with the parties that the

appropriate step for us to take at this juncture is to remand for

such a hearing.

5 Perrone dealt with a challenge per 28 U.S.C. § 2255 to a federal statutory

sentencing enhancement.No. 16

‐ 3392 15

Arnold has presented a plausible claim of actual innocence.

It is founded on M.A.’s formal recantation of his trial testi

‐

mony, which necessarily amounts to new evidence in the sense

that the recantation was not before the jury that convicted him.

(More on that in a moment.) And M.A. himself has docu

‐

mented his recantation in an affidavit he swore to and signed

in the presence of a notary and two other witnesses. Given that

the State’s case against Arnold rested primarily, if not exclu

‐ sively, on M.A.’s testimony, his recantation as the accusing

witness necessarily presents the possibility that Arnold could

be factually innocent of assaulting his son.

We reject the State’s suggestion that M.A.’s recantation

could not meet the standard for relief on a freestanding claim of

actual innocence, however credible a factfinder might deter

‐

mine it to be, such that it would be futile to proceed further.

The State presumes (not unreasonably) that the standard for

granting habeas relief on such a claim would be even more

demanding than the standard Schlup has established for

innocence as a gateway to habeas review. See n.4 supra

. But the

State has not ventured a guess as to what incremental increase

in the burden of proof relief on a freestanding claim of actual

innocence might require beyond Schlup ’s already demanding

standard ( Schlup plus

... what?). In that sense, the State’s

futility argument is really directed as much to the gateway

function of Arnold‘s innocence claim as it is to the habeas

‐ relief

function of the claim (assuming there is one).

No doubt the Schlup standard is an onerous one for the

petitioner to meet: the Supreme Court has indicated that it will

be the rare case that can successfully navigate through the

innocence gateway. See McQuiggin

, 569 U.S. at 386, 133 S. Ct. at16 No. 16

‐ 3392

1928 (“[w]e caution

... that tenable actual

‐ innocence gateway

pleas are rare”), citing Schlup

, 513 U.S. at 329, 115 S. Ct. at 868;

House v. Bell

, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077 (2006) (“the

Schlup standard is demanding and permits review only in the

extraordinary case”) (cleaned up); see also Blackmon v. Williams

,

823 F.3d 1088, 1099 (7th Cir. 2016); Hayes v. Battaglia

, 403 F.3d

935, 938 (7th Cir. 2005). Toward that end, Schlup emphasizes

that the evidence of a petitioner’s innocence must be reliable.

513 U.S. at 324, 115 S. Ct. at 865.

Arnold’s claim of innocence is not founded on DNA or

other scientific evidence that can be characterized as objective.

(Then again, neither was his conviction.) It is, instead, based on

the accusing witness’s post

‐ conviction representation that his

prior testimony was false, notwithstanding the oath he took at

trial to testify truthfully. Certainly there are reasons to treat

recantations generally with a healthy dose of skepticism. See

Mendiola v. Schomig

, 224 F.3d 589, 593 (7th Cir. 2000); Dobbert v.

Wainwright

, 468 U.S. 1231, 1233, 105 S. Ct. 34, 36 (1984)

(Brennan, J., dissenting from denial of certiorari ) (“Recantation

testimony is properly viewed with great suspicion.”); Davis v.

Bradshaw

, 2018 WL 3913103, at *1 (6th Cir. Aug. 16, 2018) (“A

recantation is not always a good reason for a new trial. The

recanting witness, in fact, may have told the truth the first

time. ...”). M.A. himself told the jury that he loved his father

and simply wanted him to get the help he needed. R. 31

‐ 2 at

218–19. It is entirely possible that M.A.’s recantation is the

product of guilt and/or pressure from family members rather

than a belated confession of what is true. Mendiola

, 224 F.3d at

593. Indeed, a clinical psychologist who testified for the State

at Arnold’s trial opined that recantations by juvenile victims ofNo. 16

‐ 3392 17

familial sexual abuse are more likely to be explained by “very

strong statements from people about the damage that they [the

accusers] are doing to a person, the damage that they are doing

to the family, from friends who are saying, you’re weird if you

go ahead with this, et cetera.” R. 31

‐ 2 at 340–41. 6 These and

other considerations might lead a court, after the recantation is

fully aired in an adversarial hearing, to conclude that it is

insufficiently reliable to satisfy the Schlup standard. See

, e.g.

, Jones v. Taylor

, 763 F.3d 1242, 1249–51 (9th Cir. 2014) (conclud

‐ ing after evidentiary hearing at which recanting witnesses,

including victim, testified that recantations were insufficient to

meet Schlup standard, let alone extraordinarily high standard

for relief on freestanding claim of actual innocence); Doe v.

Menefee

, 391 F.3d 147, 165–73 (2d Cir. 2004) (Sotomayor, J.) (2

‐ 1

opinion) (concluding after evidentiary hearing that recantation

of victim and testimony of petitioner were insufficiently

reliable to meet Schlup standard).

But given the extent to which the conviction rests on M.A.’s

testimony, we are not prepared to say that Arnold’s claim

cannot possibly meet the Schlup gateway standard (or what

‐

ever incrementally higher standard might govern a freestand

‐ ing claim of actual innocence) when no factfinder has yet heard

M.A. testify under oath on the matter of his recantation. M.A.’s

recantation, if it represents the truth, would by itself exonerate

6 The psychologist was of course not addressing the veracity of M.A.’s

affidavit, which post

‐ dated the trial. She had neither met M.A. nor

evaluated the reliability of his account of the abuse his father inflicted upon

him. That said, her testimony, and other expert opinion in a similar vein,

would be quite relevant to an evaluation of the credibility and reliability of

M.A.’s recantation and the strength of Arnold’s claim of actual innocence.18 No. 16

‐ 3392

Arnold as a factual matter. See

, e.g.

, Lopez v. Trani

, 628 F.3d

1228, 1231 (10th Cir. 2010) (concluding for purposes of certifi

‐

cate of appealability that reasonable jurists might find claim of

actual innocence, supported by affidavit of rape victim

recanting trial testimony and averring sex was consensual, to

be sufficient under Schlup to overcome time bar to late habeas

petition); Cain v. Oregon

, 546 F. App’x 641, 642 (9th Cir. 2013)

(non

‐ precedential decision) (finding victim’s unequivocal

recantation sufficient to satisfy Schlup ). 7 To say that there is no

7 Because Arnold’s conviction rests substantively on M.A.’s testimony, this

case may be contrasted with others in which the newly proffered evidence

of innocence did not by itself exonerate the petitioner or there was

additional evidence of the petitioner’s guilt apart from the testimony

supplied by a recanting witness. See

, e.g.

, Davis

, 2018 WL 3913103, at *11–*15

& n.13 (recantation of murder eyewitness did not present credible gateway

innocence claim where, inter alia

, witness’s original inculpatory statements

were corroborated by other evidence, jury that convicted petitioner was

aware that witness had not only made inconsistent statements but had

previously recanted under oath and then rescinded recantation, and

additional evidence presented at evidentiary hearing regarding innocence

claim of petitioner’s co

‐ defendant had further corroborated witness’s

inculpatory version of events); Gladney

, 799 F.3d at 899–900 (testimony of

new witness insufficient to meet Schlup standard, as witness did not see

fatal encounter between petitioner and victim and his testimony even if

credited would not compel reasonable juror to conclude that petitioner had

killed victim believing he was acting in self

‐ defense); Gandarela v. Johnson

,

286 F.3d 1080, 1086 (9th Cir. 2002) (rejecting need for hearing on petitioner’s

innocence claim where “[n]one of the proffered evidence involves a

recantation by the victim or the other children who witnessed petitioner

kissing her.”); United States v. Baker

, 824 F. Supp. 2d 918, 922 (D. N.D. 2011)

(denying motion to withdraw guilty plea based on victim’s recantation

where defendant previously “had numerous opportunities to maintain his

(continued...)No. 16

‐ 3392 19

point in proceeding to a hearing, given the rarity with which

actual innocence pleas satisfy the Schlup gateway standard and

the skepticism owed to recantations, would be to deem the

innocence gateway closed to any petitioner whose conviction

rests on the resolution of a credibility contest in favor of an

accusing witness who has since disavowed his testimony.

Whether Arnold’s claim of innocence meets the

Schlup standard can only be determined after M.A.’s new

account of events is subjected to adversarial testing under oath

before a factfinder, so that the credibility and reliability of the

recantation may be assessed. The Wisconsin courts themselves

never passed on the credibility of M.A.’s recantation. Cf.

Mendiola

, 224 F.3d at 592–93 (state appellate court deemed

witness’s recantation to be highly incredible). Instead, the

Wisconsin appellate court found it unnecessary to hear M.A.

on the matter of his recantation, reasoning that it did not meet

the state criteria for newly discovered evidence to the extent it

was cumulative of evidence already before the jury. Arnold

,

2015 WL 540534, at *2. As a result, no factfinder to date has

witnessed M.A. testify on the assertions made in his affidavit

and rendered a judgment as to whether M.A. is credible in his

recantation of the testimony he gave at trial. Of course, the

recantation itself is not the only evidence that must be consid

‐

ered in weighing the merits of Arnold’s claim. See Schlup

, 513

S. Ct. at 327–28, 115 S. Ct. at 867. But only after M.A. is heard

and his credibility is evaluated can a court weigh the strength

and reliability of the recantation against all of the evidence

7 (...continued)

innocence, but instead admitted his guilt”).20 No. 16

‐ 3392

bearing on Arnold’s guilt and determine whether Arnold has

met the demanding Schlup standard.

The district court, like the state court, presumed that no

such hearing was necessary, because the jury had heard

defense witnesses recount M.A.’s alleged pre

‐ trial, out

‐ of

‐ court

statements denying that Arnold had sexually assaulted him. To

that extent, the matter of M.A.’s inconsistent statements on the

question of Arnold’s guilt was already before the jury, and the

jury, in convicting Arnold, obviously believed his trial testi

‐

mony nonetheless. Thus, in the state court’s view, M.A.’s post

‐

trial recantation did not constitute new evidence for purposes

of his request for a new trial. And based on that understanding

of M.A.’s affidavit, the district court was convinced that

“Arnold cannot prove that no reasonable juror would have

convicted him [and therefore he] cannot satisfy the require

‐

ments for the actual innocence exception.” R. 17 at 5 (emphasis

in original).

Neither party has considered what weight, if any, we must

give to the state appellate court’s finding that M.A.’s recanta

‐

tion was cumulative. The court made that finding in resolving

a question of state law (whether the recantation entitled

Arnold to a new trial under section 974.06) rather than a

federal constitutional claim. 8 The district court pointed out that

the state court’s analysis as to whether the affidavit constituted

“newly discovered” evidence under Wisconsin law was “in

line with” the Schlup requirements for the actual innocence

8 Wisconsin law does not currently recognize a claim of actual innocence

based on newly discovered evidence. See State v. McAlister

, 911 N.W.2d 77,

86 (Wis. 2018) (declining to reach issue).No. 16

‐ 3392 21

exception to section 2244(d). R. 17 at 5. That is true in the sense

that both inquiries focus on whether the newly

‐ proffered

evidence would meaningfully alter the nature of the eviden

‐ tiary mosaic informing the jury’s assessment of guilt. But given

that the state court was not resolving a federal claim, we are

not in the usual posture of considering whether the state

court’s analysis was contrary to, or constituted an unreason

‐

able application of, Supreme Court constitutional precedents.

See § 2254(d)(1). We are instead considering whether Arnold

can show that he is entitled to the benefit of an equitable

exception to the time bar set forth in a federal statute (section

2244(d))—a purely federal matter. See McQuiggin

, 569 U.S. at

394, 133 S. Ct. at 1932; Gladney

, 799 F.3d at 895–96. So it is not

obvious that we should be bound by the state court’s finding

as to a separate question of state law. True, the state court’s

finding is partly factual, see § 2254(d)(2), although it does not

amount to a finding of historical fact, see Holsey v. Warden, Ga.

Diagnostic Prison

, 694 F.3d 1230, 1259 (11th Cir. 2012) (op. of

Carnes, J.). If anything, it is a mixed finding of law and fact:

factual to the extent that it describes and compares the content

of the affidavit with the evidence already before the jury, and

legal to the extent it embodies an understanding of the pur

‐

poses for which the evidence—old and new—was and is

offered and its relevance to the issues in the case. See Mosley v.

Atchison

, 689 F.3d 838, 848–49 (7th Cir. 2012); Washington v.

Smith

, 219 F.3d 620, 634 (7th Cir. 2000). In any case, the State

has not argued for any degree of deference to the state court’s

characterization of the recantation as cumulative; and for the

reasons that follow, we believe the state court was quite clearly

wrong to characterize it as such.22 No. 16

‐ 3392

The Wisconsin Court of Appeals’ decision treated M.A.’s

prior inconsistent statements regarding the sexual assaults as

recantations, and in that sense viewed them as the equivalent

of M.A.’s post

‐ trial affidavit disavowing his trial testimony, but

the inconsistent statements and the affidavit are two very

different things. A recantation is generally understood to be

the formal renunciation or withdrawal of one’s prior statement

or testimony. B LACK ’ S L AW D ICTIONARY 1459 (10th ed. 2014).

We may set aside the obvious point that any out

‐ of

‐ court

statements that M.A. made prior to trial were not under oath

and assume that one could treat the statements Behm and

Augsburger attributed to M.A. as recantations of the report he

had given to the authorities— if he acknowledged making those

statements. But M.A. did not, in fact, acknowledge making

those statements to Behm and Augsburger; he unequivocally

denied having said to either Behm or Augsburger that nothing

had happened between himself and his father. R. 31

‐ 2 at 267,

269, 275–76; R. 31

‐ 3 at 623–24. And the jury, of course, could

well have chosen to credit M.A. on this point: Behm and

Augsburger, after all, were both close to Arnold (Behm was

Arnold’s aunt and Augsburger was his good friend). Given the

possibility that the jury could have believed the alleged

recantations to be a fiction concocted by defense witnesses, it

is inaccurate to say that M.A.’s “recantations” were already

before the jury. M.A.’s post

‐ trial affidavit, by contrast, indubi

‐ tably is his own statement, 9 and that affidavit specifically

disavows his own prior trial testimony. In no sense is that

recantation cumulative of the evidence before the jury. The

9 There is no suggestion that the affidavit is not genuine.No. 16

‐ 3392 23

recantation is, therefore, genuinely “new” evidence of Arnold’s

innocence that was not considered by the jury, which demands

a fresh assessment of all of the evidence bearing on Arnold’s

guilt for purposes of determining whether he meets the Schlup

standard.

The appropriate step, then, as the State recognizes, is for us

to remand the case to the district court for an evidentiary

hearing at which the credibility of M.A.’s recantation can be

assessed along with the probable impact that the recantation

would have had on reasonable jurors. As Schlup makes clear,

any reliable evidence bearing on the veracity of the recantation

and on Arnold’s guilt or innocence may be considered in

making these assessments.

Our decision to remand for a hearing should not be

understood as reflecting any finding or impression on our part

as to the reliability and credibility of the recantation. That is a

question for the factfinder. We hold only that, taking M.A.’s

affidavit at face value, Arnold has a plausible claim of actual

innocence entitling him to an evidentiary hearing.

If, upon hearing and weighing the evidence, the district

court concludes that no reasonable juror would have found

Arnold guilty beyond reasonable doubt in view of M.A.’s

recantation, then Arnold will be entitled to pursue his habeas

petition notwithstanding its tardiness under section 2244(d)(1).

At that point, it will be necessary to consider whether his

freestanding claim of actual innocence presents a viable claim

for relief in habeas and what standard of proof Arnold would

have to meet in order to prevail on that claim. If, on the other

hand, the court concludes that a reasonable juror could still24 No. 16

‐ 3392

have convicted Arnold beyond a reasonable doubt notwith

‐ standing M.A.’s recantation, then his petition must be dis

‐

missed as untimely.

III.

The judgment of the district court is VACATED, and the

case is REMANDED for further proceedings consistent with

this opinion.