FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE SOULIOTES, No. 08-15943
Petitioner-Appellant,
D.C. No.
v.
1:06-cv-00667-
MIKE EVANS, Warden; ANTHONY OWW-WMW
HEDGPETH, Warden,
OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted
February 12, 2010—San Francisco, California
Filed September 20, 2010
Before: Cynthia Holcomb Hall and M. Margaret McKeown,
Circuit Judges, and Thomas S. Zilly,* Senior District Judge.
Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Zilly
* The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
15943
15946 SOULIOTES v. EVANS
COUNSEL
Randall S. Luskey, Orrick, Herrington & Sutcliffe LLP, San
Francisco, California, for the petitioner-appellant.
Kathleen A. McKenna, Deputy Attorney General, Office of
the Attorney General of California, Fresno, California, for the
respondents-appellees.
SOULIOTES v. EVANS 15947
Sheryl Gordon McCloud, Law Offices of Sheryl Gordon
McCloud, Seattle, Washington; Bob Barr, Atlanta, Georgia;
Matthew D. Brown, Cooley Godward Kronish LLP, San
Francisco, California, for the amici.
OPINION
McKEOWN, Circuit Judge:
Petitioner George Souliotes, a California prisoner, is cur-
rently serving a life sentence for three murders by arson that
he claims he did not commit. Souliotes seeks to prove his
innocence based on the results of new fire testing methods
that he claims could have only been reasonably discovered in
2005. We are called upon to decide whether his petition for
writ of habeas corpus was timely filed under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.
No. 104-132, 110 Stat. 1214, and, if so, which of his claims
for relief are cognizable.
The district court dismissed Souliotes’s habeas petition as
untimely because it was filed five days after AEDPA’s one-
year limitations period set forth at 28 U.S.C. § 2244(d)(1)(A).
However, in doing so, the district court rejected Souliotes’s
invocation of the limitations period at § 2244(d)(1)(D) based
on the date on which the factual predicate of his innocence
claim could have been reasonably discovered. Contrary to the
district court’s approach, § 2244(d)(1)(D) does not require
that petitioners exercise the maximum diligence possible in
uncovering the factual bases of their claims, but only “due”
or “reasonable” diligence. Thus, we reverse the district court’s
dismissal of the habeas petition and remand for expedited pro-
ceedings to determine when an inmate in Souliotes’s position
could have discovered the new evidence with reasonable dili-
gence.
15948 SOULIOTES v. EVANS
Because we also hold that § 2244(d)(1)(D) applies only to
Souliotes’s innocence claim, and not his claims for relief that
are not based on new evidence, we must also address his
claims for equitable tolling and application of the “actual
innocence gateway” to the AEDPA statute of limitations. See
Schlup v. Delo, 513 U.S. 298 (1995). We affirm the denial of
equitable tolling because the failure of Souliotes’s attorney to
note the correct date on which Souliotes’s state court decision
became final is not an “extraordinary circumstance,” but
rather an instance of ordinary negligence. Holland v. Florida,
130 S.Ct. 2549, 2564 (2010). Our recent precedent that
AEDPA does not include an innocence gateway in its statute
of limitations forecloses Souliotes’s gateway claim. See Lee
v. Lampert, 610 F.3d 1125, 1128-31 (9th Cir. 2010). As a
result, Souliotes’s additional claims for relief are time-barred.
BACKGROUND
Souliotes challenges his May 2000 conviction for arson and
three counts of murder with special circumstances based on
newly discovered evidence derived from scientific methods
that were not available at the time of trial. Souliotes alleges
that new expert testimony refutes the key evidence the prose-
cution used to link him to the residential fire that killed three
people. In addition to claiming actual innocence, Souliotes
presents claims of ineffective assistance of counsel, violation
of the Vienna Convention, and juror misconduct.
Souliotes was tried twice. At the first trial, Souliotes’s
counsel presented evidence, including testimony from four-
teen witnesses, to support the theory that the fire was an acci-
dent and undermine the credibility of the prosecution’s
witnesses and the prosecution’s “financial motive” theory.
The first jury hung. At the second trial, Souliotes was repre-
sented by the same attorney, who this time put on only one
witness, an individual who had served as a prosecution wit-
ness at the first trial. Souliotes was convicted on all charges
and sentenced to life without the possibility of parole.
SOULIOTES v. EVANS 15949
During Souliotes’s second trial, the prosecution relied
heavily on scientific evidence indicating that a liquid was
used to ignite the fire. After the fire, this liquid left residues
of medium petroleum distillates (“MPDs”) at the scene. A
prosecution witness testified that Souliotes’s shoes also con-
tained MPDs.1
The prosecution characterized the MPDs on Souliotes’s
shoes as “the most conclusive scientific evidence.” “What set
the fire?” the prosecution asked at closing argument. “Me-
dium petroleum distillates.” The prosecution concluded:
[T]his was an arson. From that flows the rest. From
that the finger of guilt points to the defendant.
Doesn’t point to the one-armed man. It points to
George Souliotes because he’s the one. The shoes
tell the tale. He summoned that demon that morning.
He poured that liquid on the ground and he brought
that demon to life and that demon took Michelle,
Daniel, and Amanda. He is responsible, he is guilty,
and justice accordingly demands that he be found
that way.
In 1997, before Souliotes’s trials, John Lentini, a certified
criminalist, chemist, and arson investigator, was asked to ana-
lyze twenty-one samples of physical evidence. Lentini was
asked to determine if any of the samples contained residues
of ignitable liquids. Lentini tested the samples and analyzed
the results, applying the national standards in effect at the
time for gas chromatography-mass spectrometry (“GC-MS”).
The test data provided a “chemical fingerprint” of measured
chemical compounds, but the method only identified a chemi-
cal as being within a class of chemicals, and it did not distin-
guish between different chemical compounds in the same
class.
1
The same witness acknowledged on cross-examination that glues and
adhesives used to manufacture shoes can lead to the presence of MPDs.
15950 SOULIOTES v. EVANS
In his original 1997 testing, Lentini found that four items
all exhibited the presence of MPDs. Items 3 and 5 were carpet
and carpet foam collected from the fire scene, and items 16
and 17 were a pair of Souliotes’s shoes. At the time, Lentini
concluded that “the MPD found on the shoes could not be
excluded as having come from the same source of MPD found
on items 3 and 5, collected from the scene of the fire.” Lentini
was not called as a witness in either of Souliotes’s trials.
In 2005, Souliotes’s sister contacted Lentini. Since 1997,
Lentini had spent a considerable amount of time researching
methods by which distinctions could be made within chemical
compound classes, such as MPDs. Lentini reexamined the
MPD evidence and found that “[b]y removing what I now
know to be superfluous data recorded by the GC-MS data, . . .
it was possible to make distinctions among the separate com-
pounds within the chemical class of MPD.” Specifically, he
“found that there were, in fact, chemical differences between
the MPDs found on items 3 and 5 (from the fire scene) and
items 16 and 17 (the defendant’s shoes).” On September 21,
2005, he wrote a letter to Souliotes’s sister and informed her
of these new findings.
In December 2005, Lentini prepared a report detailing his
test methods and results and concluding that:
[T]he residue on the shoes and the residue in the
scene could not have had a common origin. There is
thus no chemical ‘match’ between the ignitable liq-
uid found at the scene of the fire and the residue in
defendant’s shoes.
Shortly after, Lentini signed a declaration, which Souliotes
attached to his federal habeas petition filed on May 30, 2006.2
2
Between 2000 and 2006, Souliotes exhausted his state remedies.
SOULIOTES v. EVANS 15951
However, Souliotes’s petition was late. Based on a docket
entry at the California Court of Appeal, Souliotes’s counsel
believed that only 324 days of the AEDPA one-year limita-
tions period after the entry of a final judgment had elapsed
and that he thus had forty-one days to file his habeas petition.
See 28 U.S.C. § 2244(d)(1)(A). But Souliotes actually only
had thirty-six days left and filed his petition five days after it
was due.
The state moved to dismiss Souliotes’s petition as time-
barred, and Souliotes raised three arguments in opposition to
dismissal. First, Souliotes argued that his petition was entitled
to additional tolling under § 2244(d)(1)(D) based on the
newly discovered evidence of his innocence. Second, Souli-
otes sought equitable tolling based on exceptional circum-
stances that caused him to be late. Third, Souliotes sought to
invoke the innocence gateway under Schlup, arguing that his
actual innocence overcame the AEDPA limitations period.
The district court dismissed Souliotes’s petition as time-
barred, and this appeal followed.
ANALYSIS
I. SECTION 2244(d)(1)(D)
[1] We consider first whether Souliotes’s actual innocence
claim was timely presented to the district court. Section
2244(d)(1) provides:
A 1-year period of limitation shall apply to an appli-
cation for a writ of habeas corpus by a person in cus-
tody pursuant to the judgment of a State court. The
limitation period shall run from the latest of—
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration
of the time for seeking such review;
15952 SOULIOTES v. EVANS
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discov-
ered through the exercise of due diligence.
Souliotes argues that he is entitled to the triggering date at
§ 2244(d)(1)(D)—discovery of the factual predicate of his
actual innocence claim on September 21, 2005, the date of
Lentini’s letter to his sister.
[2] The district court rejected Souliotes’s contention:
Petitioner does not claim that any obstacle prevented
him from asking Lentini to re-test the evidence or
seeking another opinion about the evidence sooner
. . . and [the fact] that Petitioner did not uncover the
facts until September 2005 does not make them
undiscoverable.
The district court applied an incorrect diligence standard. As
our sister circuits have recognized, § 2244(d)(1)(D) does not
demand the maximum diligence possible, but only “due” or
“reasonable” diligence. See Starns v. Andrews, 524 F.3d 612,
618-19 (5th Cir. 2008); Wilson v. Beard, 426 F.3d 653, 660-
62 (3d Cir. 2005); Moore v. Knight, 368 F.3d 936, 939-40
(7th Cir. 2004); Wims v. United States, 225 F.3d 186, 190 n.4
(2d Cir. 2000).
SOULIOTES v. EVANS 15953
[3] Souliotes need not show that some obstacle made the
information in Lentini’s declaration previously “undiscover-
able” or that he could not have obtained at an earlier date
through any means conceivable. Rather, he need establish
only when a reasonable investigation would have uncovered
the facts he alleges are newly discovered. See Moore, 368
F.3d at 939-40.
[4] In addition, § 2244(d)(1)(D)’s due diligence require-
ment is an objective standard that considers the petitioner’s
specific situation. See Moore, 368 F.3d at 940 (noting that “a
due diligence inquiry should take into account that prisoners
are limited by their physical confinement”); Easterwood v.
Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (holding
that, under § 2244(d)(1)(D), “a case is discoverable by ‘due
diligence’ on the date the opinion became accessible in the
prison law library, not the date the opinion was issued.”); see
also Johnson v. Dretke, 442 F.3d 901, 907-08 (5th Cir. 2006)
(interpreting the nearly identical due diligence language in 28
U.S.C. § 2244(b)(2)(B)). The proper focus of the inquiry is
therefore when Souliotes himself would have learned of the
new evidence had he exercised reasonable care.
Souliotes asserts that he could not have previously discov-
ered the existence of new scientific techniques for distinguish-
ing between MPD chemical compounds through any
reasonable investigation, such as monitoring court decisions
or scientific literature relating to fire science. According to
Lentini, his 2005 findings used scientific techniques that were
not made widely public until 2006, when Lentini’s book was
published. The Innocence Project similarly contends in its
amicus brief that “as of 2005, when Lentini re-examined his
earlier findings, the . . . technical testing standard for MPDs
used by Lentini for the 1997 trial had not changed in relevant
part, making Lentini’s re-testing of the samples for intra-class
distinctions a true innovation.”
The state rejoins that:
15954 SOULIOTES v. EVANS
Souliotes knew the factual basis for the claim at the
time he was convicted: that is, if Souliotes did not
set the fire, he knew the chemicals on his shoes did
not come from the MPDs tested at the fire scene.
Knowing this, he should have sought assistance in
developing his claim before 2005.
The state’s circular argument points out the obvious—that an
innocent defendant is aware of his innocence from the time he
is convicted—and it is not helpful. Rather, the application of
§ 2244(d)(1)(D) turns on when Souliotes could have reason-
ably discovered the evidence based on the new developments
in testing methods, which Souliotes alleges were not widely
known prior to 2005 and not published until 2006.
[5] We conclude that an evidentiary hearing is necessary to
determine when the scientific techniques used by Lentini in
2005 to discriminate among the MPD compounds were devel-
oped, and when such information would have become avail-
able to an inmate like Souliotes. Accordingly, we reverse the
district court’s dismissal of Souliotes’s habeas petition, and
we remand for an expedited evidentiary hearing to determine
when an inmate in Souliotes’s position could have discovered
the new MPD evidence with due diligence.3
[6] We next consider whether the triggering date at
§ 2244(d)(1)(D) applies to all the claims Souliotes presents in
his habeas petition, or to his actual innocence claim alone. We
address this issue because Lentini’s 2005 findings do not form
the factual predicate of Souliotes’s claims of ineffective assis-
tance of counsel, violation of the Vienna Convention, or juror
misconduct, and those claims were presented to the district
court more than one year after Souliotes’s conviction became
final.
3
We order an expedited hearing so that Souliotes, who is now almost
seventy years old, and who has been incarcerated since 1997, may have
an opportunity for meaningful review of his innocence claim.
SOULIOTES v. EVANS 15955
Souliotes contends that the triggering date at
§ 2244(d)(1)(D) should apply to all his claims, including the
claims that are not based on newly discovered evidence. Two
of our sister circuits have split over this issue. In Walker v.
Crosby, the Eleventh Circuit held that “[t]he statute of limita-
tions in § 2244(d)(1)(D) applies to the application as a whole;
individual claims within an application cannot be reviewed
separately for timeliness.” 341 F.3d 1240, 1245 (11th Cir.
2003). Emphasizing the reference in § 2244(d)(1) to “an
application for a writ of habeas corpus,” the court reasoned
that “[t]he statute directs the court to look at whether the
‘application’ is timely, not whether the individual ‘claims’
within the application are timely.” Id. at 1243 (emphasis
added).
[7] The Third Circuit rejected this position in Fielder v.
Varner, 379 F.3d 113 (3d Cir. 2004) (Alito, J.), holding
instead that § 2244(d)(1) applies on a claim-by-claim basis.
Rather than focus solely on the term “application” in
§ 2244(d)(1), the court looked to the text of § 2244(d)(1)(D),
which refers to “the date on which the factual predicate of the
claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D)
(emphasis added). As the court explained, “[a]pplying this
language in a case [like Souliotes’s] in which multiple claims
are presented poses a problem.” Fielder, 379 F.3d at 117-18.
The reference to “the latest” date in § 2244(d)(1)
tells a court how to choose from among the four
dates specified in subsections (A) through (D) once
those dates are identified. This language does not
tell a court how to identify the date specified in sub-
section (D) in a case in which the application con-
tains multiple claims. Accordingly, there is nothing
in § 2244(d) that suggests that a court should follow
the Walker interpretation and select the latest date on
which the factual predicate of any claim presented in
a multi-claim application could have reasonably
15956 SOULIOTES v. EVANS
been discovered. It would be just as consistent with
the statutory language to pick the earliest date.
Id. at 118. Thus, the Walker interpretation failed on its own
terms.
The court in Fielder went on to identify two reasons why
that the statute of limitations in § 2244(d)(1) should be
applied on a claim-by-claim basis. First, this approach is con-
sistent with how statutes of limitations are generally applied,
and Congress made no indication of departing from this
approach in AEDPA. Id. at 118-19. Second, the claim-by-
claim approach avoids the perverse result of “permitting a
late-accruing federal habeas claim to open the door for the
assertion of other claims that had become time-barred years
earlier.” Id. at 120.4
[8] We adopt the reasoning in Fielder and hold that
§ 2244(d)(1) requires consideration of the appropriate trigger-
ing date for each claim presented in the application. Accord-
ingly, here § 2244(d)(1)(D) provides the triggering date for
Souliotes’s substantive actual innocence claim, which is based
on newly discovered evidence, but § 2244(d)(1)(A) cabins the
limitations period as to Souliotes’s other habeas claims. As a
result, those other claims are time-barred unless he can prevail
on his equitable tolling or gateway claims.
II. EQUITABLE TOLLING
Souliotes seeks equitable tolling based on his counsel’s
reliance on an ambiguous docket entry. Section 2244(d)(1)(A)
instructs courts to calculate the date on which the petitioner’s
4
This approach is also consistent with Supreme Court dicta interpreting
§ 2244(d)(1)(D) to require claim-by-claim consideration. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 n.6 (2005) (citing § 2244(d)(1)(D) in dis-
cussion of whether state post-conviction petition was “properly filed”
under § 2244(d)(2)).
SOULIOTES v. EVANS 15957
judgment “became final by the conclusion of direct review.”
The operative date for Souliotes is ninety days after the Cali-
fornia Supreme Court’s denial of his petition for review on
October 16, 2002. See Bowen v. Roe, 188 F.3d 1157, 1159
(9th Cir. 1999). This date is correctly indicated in the on-line
docket of the California Supreme Court. The on-line docket
of the California Court of Appeal, however, contains an entry
on October 22, 2002 that reads: “Petition for review denied in
Supreme Court.” The “Notes” section of this October 22,
2002 entry in turn reads: “denied 10/16/02 ea member of ct
notified by cc mail.” Based on this entry, Souliotes’s habeas
counsel took October 22, 2002, rather than October 16, 2002,
to be the triggering date for the one-year limitations period
under § 2244(d)(1)(A). This mistake caused counsel to file
Souliotes’s petition five days late.
[9] In Holland v. Florida, the Supreme Court recently con-
firmed that the AEDPA limitations period is not jurisdictional
and is subject to equitable tolling. 130 S.Ct. at 2560; see also
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 n.2 (9th
Cir. 2009). A petitioner “is ‘entitled to equitable tolling’ only
if he shows ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way’ and prevented timely filing.” Holland, 130 S.Ct. at 2562
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). In
Holland, the Court rejected the “extraordinary circumstance”
standard applied by the Eleventh Circuit as “too rigid,” under
which even “grossly negligent” attorney conduct would not
warrant tolling absent a showing of “bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the lawyer’s
part.” Id. at 2562-63 (internal quotation marks omitted).
Rather, the tolling analysis is a flexible, equitable inquiry in
which courts “exercise judgment in light of prior precedent,
but with awareness of the fact that specific circumstances,
often hard to predict in advance, could warrant special treat-
ment in an appropriate case.” Id. at 2563.
[10] Under our precedent, Souliotes does not warrant a
grant of equitable tolling. The clerical error that occurred here
15958 SOULIOTES v. EVANS
is hardly “extraordinary,” and it is reasonable to expect Souli-
otes’s counsel to have determined the correct date on which
the state court judgment became final. We have repeatedly
held that counsel’s negligent miscalculation of the limitations
period does not entitle a petitioner to equitable relief. Miranda
v. Castro, 292 F.3d 1063, 1066-68 & n.4 (9th Cir. 2002); Frye
v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); see also
Holland, 130 S.Ct. at 2564 (noting that “a garden variety
claim of excusable neglect, such as a simple miscalculation
that leads a lawyer to miss a filing deadline, does not warrant
equitable tolling” (internal quotation marks and citations
omitted)). Because Souliotes cannot show an “extraordinary
circumstance” that prevented him from filing on time, his
request for equitable tolling fails.
III. INNOCENCE GATEWAY
Souliotes additionally argues that, despite his untimely fil-
ing, he may yet pursue his ineffective assistance, Vienna Con-
vention, and juror misconduct claims under the actual
innocence gateway established in Schlup v. Delo. Souliotes’s
claim, however, is squarely foreclosed by our recent decision
in Lee v. Lampert.
[11] As we explained in Lee, Schlup created an actual
innocence exception to the limitations on second or succes-
sive habeas petitions and to state procedural requirements.
Lee, 610 F.3d at 1131. 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 fundamen-
tal miscarriage of justice.’ ” Carriger v. Stewart, 132 F.3d
463, 477 (9th Cir.1997) (en banc) (quoting Schlup, 513 U.S.
at 315).
[12] Although we previously declined to address whether
the gateway applied to AEDPA’s statute of limitations for
original petitions, see Majoy v. Roe, 296 F.3d 770, 777 (9th
SOULIOTES v. EVANS 15959
Cir. 2002), our court in Lee joined the majority of our sister
circuits to hold that no such exception exists under
§ 2244(d)(1). See Lee, 610 F.3d at 1128 (citing cases). As we
explained at length:
The omission of “actual innocence” from the enu-
merated list of exceptions in the statutory text is sig-
nificant . . . . Since section 2244(d) comprises six
paragraphs defining its one-year limitations period in
detail and adopting very specific exceptions . . .,
Congress likely did not conceive that the courts
would add new exceptions and it is even more
doubtful that it would have approved of such an
effort. It is not our place to engraft an additional
judge-made exception onto congressional language
that is clear on its face . . . . That Congress created
three exceptions to the general rule that the limita-
tions period begins upon the conclusion of direct
review indicates it did not intend other exceptions,
and there is no evidence to the contrary.
Id. at 1129-30 (internal quotation marks and citations omit-
ted). This plain reading was additionally “buttressed by the
explicit enumeration of an actual innocence exception in . . .
section 2244(b)(2)(B), which governs the filing of second or
successive habeas petitions.” Id. at 1130.
[13] Lee precludes any argument that Souliotes has
recourse to the innocence gateway. Consequently, we affirm
the district court’s rejection of Souliotes’s gateway claim.
CONCLUSION
Because the district court applied an incorrect diligence
standard under § 2244(d)(1)(D), we reverse the district court’s
dismissal of Souliotes’s habeas petition and remand for an
expedited evidentiary hearing to determine when an inmate in
Souliotes’s position could have discovered the new MPD evi-
15960 SOULIOTES v. EVANS
dence with due diligence. If the district court concludes that
Souliotes satisfies the diligence requirement of
§ 2244(d)(1)(D), the district court shall adjudicate the merits
of Souliotes’s actual innocence claim on an expedited basis.
We affirm the district court’s denial of equitable tolling based
on counsel’s miscalculation of the limitations period at
§ 2244(d)(1)(A) as well as the rejection of Souliotes’s gate-
way claim. Thus, Souliotes’s remaining claims for relief are
time-barred.
AFFIRMED IN PART, REVERSED IN PART, and
REMANDED for proceedings consistent with this opinion.
The parties shall bear their own costs on appeal.
ZILLY, Senior District Judge, concurring in part and dissent-
ing in part:
This case requires much more from us than the majority has
acknowledged, and I must respectfully dissent. Although I
concur with the majority’s conclusion that the district court
applied an incorrect diligence standard when assessing
whether Souliotes timely presented his new “MPD” evidence
pursuant to 28 U.S.C. § 2244(d)(1)(D),1 I cannot abide the
“fool’s errand,” In re Davis, 130 S. Ct. 1, 4 (2009) (Scalia, J.,
dissenting), on which the majority sends the district court. By
incorrectly holding that the decision in Lee v. Lampert, 610
F.3d 1125 (9th Cir. 2010), “squarely foreclosed” Souliotes
from pursuing his ineffective assistance of counsel and other
constitutional claims via the “actual innocence” gateway first
recognized in Schlup v. Delo, 513 U.S. 298 (1995),2 the
1
I also concur with the majority that Souliotes is not entitled to equitable
tolling premised upon his counsel’s miscalculation of the deadline for fil-
ing his federal habeas petition.
2
The Schlup decision was succinctly explained in Carriger v. Stewart,
132 F.3d 463 (9th Cir. 1997) (en banc): “The terminology in this area is
SOULIOTES v. EVANS 15961
majority has left Souliotes with a stand-alone substantive
actual innocence claim. Having done so, the majority then
proceeds to require that the district court conduct an evidenti-
ary hearing on whether Souliotes’s stand-alone substantive
actual innocence claim was timely filed without even address-
ing whether such claim is cognizable in a non-capital case.3
sometimes confusing because the ‘miscarriage of justice’ exception [rec-
ognized in Schlup] . . . has been described as a showing of ‘actual inno-
cence.’ . . . [It] is not an independent avenue to relief. Rather, if
established, it functions as a ‘gateway,’ permitting a habeas petitioner to
have considered on the merits claims of constitutional error that would
otherwise be procedurally barred.” Id. at 477.
3
In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court held
that stand-alone substantive claims of actual innocence are not cognizable
in federal habeas actions; habeas relief is available only when a substan-
tive claim of innocence is tied to an independent constitutional violation.
Id. at 400-05. The Herrera Court reasoned that “federal habeas courts sit
to ensure that individuals are not imprisoned in violation of the Constitu-
tion — not to correct errors of fact.” Id. at 400. Thus, insufficiency of the
evidence does not constitute the requisite independent constitutional viola-
tion for asserting a habeas claim of actual innocence; a sufficiency review
is limited to “record evidence” and may not extend to newly discovered
evidence. Id. at 401-02 (discussing Jackson v. Virginia, 443 U.S. 307
(1979)). The question left open in Herrera was whether execution of an
innocent person qualified as an independent constitutional violation that
would render a related substantive claim of actual innocence cognizable
in a habeas proceeding. Remarkably, 17 years have elapsed since Herrera
and only very recently has a court explicitly recognized a stand-alone
actual innocence claim in a case involving the death penalty. In re Davis,
__ F. Supp. 2d __, 2010 WL 3385081 (S.D. Ga. 2010) (concluding that
“executing the ‘actually’ innocent violates the cruel and unusual punish-
ment clause of the Eighth Amendment”). During the interim, however, at
least two circuits have concluded that stand-alone actual innocence claims
are not cognizable in non-capital cases. Allen v. Beck, 179 Fed. Appx. 548,
551 n.2 (10th Cir. 2006); Milone v. Camp, 22 F.3d 693, 700 (7th Cir.
1994). Our circuit has so far declined to address the issue. Osborne v. Dist.
Attorney’s Office, 521 F.3d 1118, 1131 (9th Cir. 2008), rev’d on other
grounds, 129 S. Ct. 2308, 2321-22 (2009). Although I would hold that
continuing to incarcerate the “actually innocent” is just as violative of the
Eighth Amendment as executing them, see Osborne, 521 F.3d at 1130
(indicating that whether a distinction should be made between capital and
non-capital cases remains an open question, although Herrera did suggest
equal treatment), the district court will have, on remand, only the contrary
views of our sister circuits.
15962 SOULIOTES v. EVANS
The majority acknowledges that it is “called upon to decide”
whether Souliotes’s timely “claims for relief are cognizable,”
yet fails to decide this critical issue. I believe that the majority
should address this important issue now. If the majority were
to conclude that a stand-alone substantive actual innocence
claim in a non-capital case is precluded by Herrera, no pur-
pose would be served by conducting an evidentiary hearing to
determine when Souliotes could have discovered the “MPD”
evidence through the exercise of reasonable care. The major-
ity has thereby failed to provide meaningful guidance to the
district court, and it may give Souliotes potentially false hope
of federal habeas relief.4
For related reasons, I also dissent from the majority’s blind
reliance on the decision in Lee v. Lampert, 610 F.3d 1125 (9th
Cir. 2010), to preclude Souliotes from pursuing his otherwise
time-barred constitutional claims via the Schlup “actual inno-
cence” or “miscarriage of justice” gateway. Lee is distinguish-
able from this case, and the majority’s conclusion that
Souliotes’s claim is “squarely foreclosed” by Lee is just plain
wrong.
The starting point for discussion is the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214. The AEDPA imposes on federal
habeas petitions a one-year time limit that commences on the
latest of the following four triggering dates:
(A) the date on which the judgment became final
4
Even if, on remand, the district court were to hold that a stand-alone
substantive actual innocence claim is cognizable in a non-capital habeas
case, Souliotes would face the task of “affirmatively prov[ing] that he is
probably innocent.” Carriger, 132 F.3d at 476-77 (deciding en banc that
a stand-alone substantive actual innocence claim, if cognizable, requires
an “extraordinarily high” showing, stronger than what is required to estab-
lish insufficiency of the evidence to convict and going beyond demonstrat-
ing doubt about guilt).
SOULIOTES v. EVANS 15963
by the conclusion of direct review or the expiration
of the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discov-
ered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1). In Lee, the petitioner filed his habeas
application more than one year after the challenged judgment
became final, thus rendering his petition time-barred under
the first triggering date, and he made no contention that any
of the other three triggering dates of the AEDPA applied.
More specifically, Lee asserted no state-created impediment
to timely filing, no relevant change in the law, and, most
importantly, no newly discovered evidence.5 Rather, Lee
sought to add either a fifth triggering date to § 2244(d)(1) or
a tolling mechanism for “actual innocence gateway” claims
brought pursuant to Schlup. The Lee decision rejected this
proposed “amendment” to the AEDPA’s one-year limit, and
held that Lee’s habeas petition was time barred.
5
Although Lee presented “new” evidence (evidence not presented at
trial) in connection with his habeas petition, the evidence was not “newly
discovered.” See Lee v. Lampert, 607 F. Supp. 2d 1204, 1217 (D. Or.
2009), rev’d, 610 F.3d 1125 (9th Cir. 2010).
15964 SOULIOTES v. EVANS
In contrast, Souliotes’s habeas petition presents multiple
claims, one based on newly discovered evidence, and the oth-
ers filed more than one year after the challenged conviction
became final. In other words, Souliotes presents both (i) a
claim that is potentially timely under one of the four time-
counting provisions of the AEDPA, namely § 2244(d)(1)(D),
and (ii) affiliated claims, which would themselves be time
barred, but which Souliotes seeks to bring through the Schlup
“actual innocence” or “miscarriage of justice” gateway. This
scenario differs substantially from the one presented in Lee.
In Lee, the petitioner asserted a freestanding gateway claim;
he sought to pass through the Schlup portal without satisfying
one of the four means by which a habeas claim may be
deemed timely under the AEDPA. Souliotes, however, brings
affiliated gateway claims, which are tethered to his presum-
ably timely claim based on newly discovered evidence. Thus,
unlike Souliotes, Lee attempted to invoke the benefit of Sch-
lup without exercising the diligence required by the AEDPA.
This distinction between freestanding and affiliated Schlup
gateway claims has been recognized by at least one of our sis-
ter circuits. See Araujo v. Chandler, 435 F.3d 678 (7th Cir.
2005). In Araujo, the Seventh Circuit differentiated between
freestanding gateway claims and actual innocence claims as
to which the petitioner has met “the statutory requirements of
timely action.” Id. at 680 (quoting Escamilla v. Jungwirth,
426 F.3d 868, 872 (7th Cir. 2005)). With regard to the former,
no tolling or exception to the one-year limit is available. Id.
at 682. As to the latter, the Seventh Circuit left open the possi-
bility that a petitioner may step through the “actual inno-
cence” or “miscarriage of justice” gateway and bring along
otherwise barred constitutional claims.
This analysis is faithful to the principles underlying the
Schlup gateway. In Schlup, the petitioner had been sentenced
to death and had filed his first application for federal habeas
relief pro se. His second federal habeas petition was filed by
new counsel, and raised a number of claims, including that (i)
SOULIOTES v. EVANS 15965
his execution would be unconstitutional because he was actu-
ally innocent, (ii) trial counsel was ineffective for failing to
interview alibi witnesses, and (iii) the prosecution withheld
exculpatory evidence. 513 U.S. at 307. Ordinarily, the claims
raised in Schlup’s second habeas petition would have been
procedurally barred because they were not presented in his
first habeas petition, and he was “unable to establish ‘cause
and prejudice’ sufficient to excuse his failure” to allege the
claims earlier. Id. at 314 (quoting McCleskey v. Zant, 499
U.S. 467, 493-494 (1991)).
The Supreme Court, however, held that Schlup fell within
the “narrow class of cases . . . implicating a fundamental mis-
carriage of justice.” Id. at 315 (quoting McCleskey, 499 U.S.
at 494). The Supreme Court explained that, although Schlup
asserted a claim of actual innocence, the claim was not sub-
stantive and did not “by itself provide a basis for relief.” Id.
at 315 & n.31. Instead, Schlup was raising procedural actual
innocence claims, which the Supreme Court took great care
to distinguish from the stand-alone substantive actual inno-
cence claims precluded by Herrera. Id. at 314-15. The Schlup
Court observed that the procedural actual innocence claim
simply operated as a gateway for Schlup’s ineffective assis-
tance of counsel and withholding of evidence claims. Id. at
315. Because Schlup’s assertion of innocence was accompa-
nied by claims of constitutional error at trial, his conviction
was not entitled to the same degree of respect as one, like
Herrera’s, that was the product of an error-free trial. Id. at
316. Schlup’s procedural claim of innocence opened the gate-
way for his otherwise barred constitutional claims because his
new evidence6 of innocence created sufficient doubt about
guilt “to justify the conclusion that his execution would be a
miscarriage of justice.” See id.
6
The “new evidence” supporting a Schlup gateway claim need not be
“newly discovered.” See Schlup, 513 U.S. at 316.
15966 SOULIOTES v. EVANS
In further defining the “miscarriage of justice” gateway, the
Supreme Court concluded that the more lenient standard of
Murray v. Carrier, 477 U.S. 478 (1986), rather than the strin-
gent requirement of Sawyer v. Whitley, 505 U.S. 333 (1992),
governs whether the Schlup portal should be opened. The
Carrier test, when restated in the context of the Schlup gate-
way, is whether the petitioner has shown “more likely than
not that no reasonable juror would have convicted him in the
light of the new evidence.” 513 U.S. at 327. Under Schlup, in
assessing the adequacy of the petitioner’s gateway showing,
a district court is not bound by the rules of admissibility appli-
cable at trial, but instead should consider “the probative force
of relevant evidence that was either excluded or unavailable
at trial.” Id. at 327-28. Schlup requires the district court to
presume that jurors “consider fairly all of the evidence pres-
ented” and “conscientiously obey the instructions of the trial
court requiring proof beyond a reasonable doubt,” and then,
in light of the new evidence, to “make a probabilistic determi-
nation about what reasonable, properly instructed jurors
would do.” Id. at 329.
In crafting the “miscarriage of justice” gateway, the
Supreme Court sought “to balance the societal interests in
finality, comity, and conservation of scarce judicial
resources” against “the individual interest in justice that arises
. . . . [when] constitutional error has resulted in the conviction
of one who is actually innocent of the crime.” Id. at 324.
These competing concerns are best taken into account by dis-
tinguishing between freestanding and affiliated gateway
claims. A freestanding gateway claim, like the one advanced
in Lee, might know no bounds of time, and such attempt to
circumvent the limitations set forth in the AEDPA flies in the
face of the principles of finality underlying the statute and
recognized in the Schlup decision. In contrast, affiliated Sch-
lup gateway claims, being associated with another habeas
claim as to which the diligence requirements of the AEDPA
have been met, tip the scales in favor of “the individual inter-
est in justice.”
SOULIOTES v. EVANS 15967
In Lee, the majority distinguished Schlup as applying to
“second or successive habeas petition limitations,” as opposed
to time limitations for bringing a first habeas petition. See 601
F.3d at 1131. The Lee majority reasoned that, because Schlup,
which predated the AEDPA, did not expressly concern a stat-
ute of limitations, Congress was neither relying on nor
addressing Schlup in creating the AEDPA’s one-year clock or
in defining the dates on which it would begin to run. Although
this reasoning is sufficient for purposes of Lee, the analysis
cannot end there in our case. Implicit within the Schlup deci-
sion was the conclusion that Schlup’s habeas claims were late
— they should have been made earlier, in his first habeas peti-
tion. Thus, although Schlup did not deal explicitly with a limi-
tations period, the opinion did speak to whether untimely
claims may be brought under certain circumstances.
By extending Lee, in cursory fashion, beyond its proper
bounds, and thereby limiting Schlup to second or successive
petitions, the majority punishes Souliotes for the diligence he
has displayed in presenting, in his first habeas petition, his
claim based on newly discovered evidence. The AEDPA
expressly permits a second or successive petition raising a
claim based on newly discovered evidence establishing that
“no reasonable factfinder would have found the applicant
guilty.” 28 U.S.C. § 2244(b)(2)(B). Thus, although the
AEDPA and Schlup would have allowed Souliotes to bring all
of his claims in a second or successive petition, he is pre-
cluded from doing so on his first petition because the majority
fails to recognize the distinction between freestanding and
affiliated Schlup gateway claims. This conclusion is mis-
guided and results in a fundamental miscarriage of justice.
This result is also inconsistent with the importance ascribed
to a first federal habeas petition. See Lonchar v. Thomas, 517
U.S. 314, 324 (1996) (“Dismissal of a first federal habeas
petition is a particularly serious matter, for that dismissal
denies the petitioner the protections of the Great Writ entirely,
risking injury to an important interest in human liberty.”)
(emphasis in original); cf. House v. Bell, 547 U.S. 518 (2006)
15968 SOULIOTES v. EVANS
(applying Schlup in the context of a first federal habeas peti-
tion involving claims defaulted by failure to present them in
the state courts).
By ignoring the challenges Souliotes will face in pursuing
a stand-alone actual innocence claim, the majority does Souli-
otes a great disservice. He is forced to marshal all his
resources to establish that he timely presented his new
“MPD” evidence, only to then face a likely futile battle con-
cerning the cognizability of his stand-alone substantive actual
innocence claim. Meanwhile, for ill-explained reasons, the
majority eliminates the only mechanism, the Schlup gateway,
by which Souliotes might have presented his affiliated inde-
pendent constitutional claims. I would instead reverse and
remand for further proceedings so that, in addition to deter-
mining whether Souliotes timely presented his newly discov-
ered evidence under § 2244(d)(1)(D), the district court may
assess, in the first instance, whether Souliotes can make the
requisite threshold showing under Schlup. For purposes of the
Schlup gateway, Souliotes “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.’ ” See Majoy v. Roe, 296 F.3d 770,
776 (9th Cir. 2002) (quoting Carriger, 132 F.3d at 478 (quot-
ing Schlup, 513 U.S. at 316)). On such remand, the district
court would consider all of the evidence, including not only
the newly discovered evidence but also the anticipated testi-
mony of witnesses who were available but were not called as
witnesses by Souliotes’s allegedly ineffective trial counsel.7 If
Souliotes were to prevail as to the timeliness of his newly dis-
7
Souliotes presents a compelling case for habeas relief. In his first trial,
his trial counsel called fourteen witnesses, whose testimony undermined
the prosecution’s case and resulted in a hung jury. In his second trial, the
same trial counsel called only one witness, an individual who had testified
for the prosecution during the first trial. This vastly reduced level of repre-
sentation has not been explained as somehow strategic or the result of wit-
ness unavailability, which presumably could have been addressed under
Federal Rule of Evidence 804. Thus, if allowed to pursue his ineffective
SOULIOTES v. EVANS 15969
covered evidence and as to the threshold showing required
under Schlup, then all of Souliotes’s constitutional habeas
claims would be eligible for consideration on the merits.
For the foregoing reasons, I respectfully dissent.
assistance of counsel claim, Souliotes could likely show that his convic-
tion was not the product of an error-free trial. In addition, Souliotes prof-
fers new scientific evidence that is alleged to contradict the key piece of
evidence linking him with the crime scene, thereby casting significant
doubt on the accuracy of the verdict. Souliotes epitomizes the type of
habeas petitioner the Schlup gateway was intended to benefit.