FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD R. LEE, No. 09-35276
Petitioner-Appellee,
v. D.C. No.
1:02-cv-00300-CL
ROBERT O. LAMPERT,
OPINION
Respondent-Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
March 23, 2011—San Francisco, California
Filed August 2, 2011
Before: Alex Kozinski, Chief Judge, Mary M. Schroeder,
Harry Pregerson, Sidney R. Thomas, M. Margaret McKeown,
William A. Fletcher, Richard A. Paez, Marsha S. Berzon,
Johnnie B. Rawlinson, Richard R. Clifton, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Thomas;
Concurrence by Chief Judge Kozinski
9883
9886 LEE v. LAMPERT
COUNSEL
Janet A. Klapstein, Senior Assistant Attorney General of Ore-
gon, Salem, Oregon, for the respondent-appellant.
Stephen R. Sady, Chief Deputy Federal Public Defender of
Oregon, Portland, Oregon, for the petitioner-appellee.
OPINION
THOMAS, Circuit Judge:
This appeal presents the question of whether a credible
showing of “actual innocence” under Schlup v. Delo, 513 U.S.
298 (1995), excuses the statute of limitations period estab-
lished by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. We conclude
that it does, but that the petitioner failed to present sufficient
LEE v. LAMPERT 9887
evidence of actual innocence to permit review of his constitu-
tional claims on the merits. We reverse the judgment of the
district court.
I
An Oregon jury convicted Richard Lee of two counts of
first degree sex abuse and two counts of first degree sodomy,
for which he received a sentence of 170 months in prison.
Although Lee’s trial attorney provided appellate counsel with
a list of potential trial errors, appellate counsel filed a “Bal-
four brief” with the Oregon Court of Appeals, indicating there
were no meritorious issues for appeal.1 The Oregon Court of
Appeals affirmed his conviction without opinion. Lee did not
file a petition for review to the Oregon Supreme Court.
Lee petitioned for state postconviction relief, alleging inef-
fective assistance of counsel at trial and on appeal.2 The state
trial court denied the petition; the Oregon Court of Appeals
affirmed; and the Oregon Supreme Court denied review. The
appellate judgment became final on September 24, 2001.
1
A Balfour brief is the Oregon variant of the briefing system established
by the Supreme Court in Anders v. California, 386 U.S. 738 (1967). See
Reese v. Baldwin, 282 F.3d 1184, 1187 (9th Cir. 2002), rev’d on other
grounds, 541 U.S. 27 (2004). In State v. Balfour, 814 P.2d 1069 (Or.
1991), the Oregon Supreme Court established a procedure by which coun-
sel can notify the court that he or she believes the appeal lacks merit with-
out withdrawing from representation of the appellant. Id. at 1078-79.
Unlike the Anders procedure, the court is not required to review the record
independently for error. Id. at 1080.
2
Lee alleged that his trial counsel failed to adequately investigate, to
object to certain evidence, and to call an expert on the reliability of child
testimony. He further alleged that trial counsel inadequately cross-
examined witnesses, called a prejudicial witness, failed to move for a mis-
trial or judgment of acquittal, and did not adequately object to the denial
of Lee’s motion under Oregon Rule of Evidence 412. He alleged that his
appellate counsel failed to raise both preserved and plain error on appeal.
9888 LEE v. LAMPERT
Lee filed a federal habeas petition on March 11, 2002. The
district court dismissed the petition as untimely, but we
reversed this determination on appeal and the petition was rein-
stated.3 Lee filed his first amended petition on July 25, 2005,
and filed a memorandum and exhibits almost two years later.
The district court granted Lee’s petition. Lee v. Lampert,
607 F. Supp. 2d 1204 (D. Or. 2009). The court held that a
showing of actual innocence tolls AEDPA’s limitations
period and concluded that Lee made the requisite showing. Id.
at 1216-22. On the merits, the court held that Lee established
his claim for ineffective assistance of counsel. Id. at 1226.
The court therefore granted Lee’s petition, vacated his convic-
tion and sentence, and allowed the State of Oregon 120 days
to retry or release him. Id.
The State timely appealed, and a motions panel stayed the
district court order pending appeal. A panel of this court
reversed the district court. Lee v. Lampert, 610 F.3d 1125 (9th
Cir. 2010). As a matter of first impression, the panel held that
there is no actual innocence exception to override AEDPA’s
statute of limitations, and dismissed Lee’s petition as time-
barred. Id. at 1133-34. We granted rehearing en banc. Lee v.
Lampert, 633 F.3d 1176 (9th Cir. 2011).
We review de novo the grant of a petition for habeas cor-
pus. Paulino v. Harrison, 542 F.3d 692, 698 (9th Cir. 2008).
3
A magistrate judge held that the petition was not filed within AEDPA’s
one-year limitations period, and the district court adopted the magistrate
judge’s recommendation to dismiss. We reversed and remanded, accepting
Oregon’s concession that the district court erred by dismissing the petition
as untimely on its face, without opportunity to establish circumstances that
might toll the limitations period. Lee v. Lampert, 92 Fed. Appx. 532,
532-33 (9th Cir. 2004).
LEE v. LAMPERT 9889
II
Lee concedes that he did not file his federal habeas petition
within AEDPA’s one-year statute of limitations period.4 He
argues that a federal court nevertheless may review his first
habeas petition upon a showing of “actual innocence” under
Schlup. We agree.
We hold that a credible claim of actual innocence consti-
tutes an equitable exception to AEDPA’s limitations period,
and a petitioner who makes such a showing may pass through
the Schlup gateway and have his otherwise time-barred claims
heard on the merits. In recognizing an equitable exception
based on a credible showing of actual innocence, we join
three of our sister circuits on an issue that has divided the
courts of appeal.5 See Souter v. Jones, 395 F.3d 577, 602 (6th
Cir. 2005); Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir.
2010); San Martin v. McNeil, 633 F.3d 1257, 1267-68 (11th
Cir. 2011).6
4
Lee filed for state postconviction relief on February 23, 1998, more
than 16 months after direct review of his conviction became final on Sep-
tember 30, 1996. Then, after his state postconviction relief proceedings
ended, during the pendency of which the federal limitations period is
tolled, see 28 U.S.C. § 2244(d)(2), another six months passed before Lee
filed for federal habeas relief. All told, Lee filed for federal habeas relief
well after the one-year statute of limitations had expired.
5
We note that, in many cases, the phrase “equitable tolling” is used in
describing the use of equitable power to allow the untimely filing of a
habeas petition in an actual innocence case. The more accurate character-
ization is “equitable exception,” because equitable tolling involves differ-
ent theoretical underpinnings.
6
The First, Fifth, and Seventh Circuits do not recognize an actual inno-
cence exception under any circumstances. See David v. Hall, 318 F.3d
343, 347 (1st Cir. 2003); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002); Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005). But
see Riva v. Ficco, 615 F.3d 35, 44 n.4 (1st Cir. 2010) (characterizing
David as merely “expressing skepticism” about whether an actual inno-
cence claim can excuse AEDPA’s limitations period, and remanding to the
district court to consider the issue in the first instance); Gildon v. Bowen,
384 F.3d 883, 887 (7th Cir. 2004) (adopting the Eighth Circuit’s approach
in Flanders v. Graves, 299 F.3d 974, 976-78 (8th Cir. 2002)). The Eighth
Circuit has left open the possibility that actual innocence could bear on a
claim for equitable tolling. See Flanders, 299 F.3d at 976-78.
9890 LEE v. LAMPERT
A
[1] AEDPA provides that “[a] 1-year period of limitation
shall apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2244(d)(1). Section 2244(d)(1) “contain[s] multi-
ple provisions relating to the events that trigger its running.”
Holland v. Florida, ___ U.S. ___, 130 S. Ct. 2549, 2561
(2010). The triggering events are the dates on which: direct
review becomes final, an unlawful state-created impediment
to filing is removed, a new constitutional right is made retro-
actively available, or the factual predicate of the claim(s)
presented could have been discovered with “due diligence.”
28 U.S.C. § 2244(d)(1)(A)-(D).
1
[2] As the Supreme Court has instructed us, AEDPA’s
statute of limitations is subject to equitable exceptions “in
appropriate cases.” Holland, 130 S. Ct. at 2560; Porter v.
Ollison, 620 F.3d 952, 959 (9th Cir. 2010). Because § 2244(d)
is not jurisdictional, it is “subject to a ‘rebuttable presump-
tion’ in favor ‘of equitable tolling.’ ” Holland, 130 S. Ct. at
2560 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
95-96 (1990)).7
[3] That presumption applies with particular force to
AEDPA, the Court has explained, for two reasons. First, “eq-
uitable principles have traditionally governed the substantive
law of habeas corpus,” and federal courts “will not construe
a statute to displace courts’ traditional equitable authority
absent the clearest command.” Id. (citing Munaf v. Geren, 553
7
Historically, of course, there were no statutes of limitations applicable
to federal writs of habeas corpus. As Justice Jackson explained “habeas
corpus provides a remedy for jurisdictional and constitutional errors at the
trial without limit of time.” United States v. Smith, 331 U.S. 469, 475
(1947).
LEE v. LAMPERT 9891
U.S. 674, 693 (2008); Miller v. French, 530 U.S. 327, 340
(2000)) (internal quotation marks omitted). Second, Congress
enacted AEDPA when the presumption in favor of equitable
tolling was well-established in case law, and therefore Con-
gress was aware that courts would apply the presumption
when interpreting § 2244(d). Id. at 2561. Thus, notwithstand-
ing § 2244(d)’s silence as to an equitable exception and its
express provision for statutory tolling, the Court has held that
neither AEDPA’s text nor its purposes “rebut” the presump-
tion in favor of equitable tolling. Id. at 2561-62.
[4] At the time of AEDPA’s passage, federal courts had
equitable discretion to hear the merits of procedurally-
defaulted habeas claims where the failure to do so would
result in a “fundamental miscarriage of justice,” such as the
conviction of an actually innocent person. See McCleskey v.
Zant, 499 U.S. 467, 502 (1991); Schlup, 513 U.S. at 320-321;
Souter, 395 F.3d at 598-99.
The actual innocence exception “serves as ‘an additional
safeguard against compelling an innocent man to suffer an
unconstitutional loss of liberty,’ guaranteeing that the ends of
justice will be served in full.” McCleskey, 499 U.S. at 495
(quoting Stone v. Powell, 428 U.S. 465, 492-93, n.31 (1976)).
It gained recognition in numerous contexts, Schlup, 513 U.S.
at 320,8 including where a procedural default resulted from
untimely filing in state postconviction proceedings, see Sou-
8
See Kuhlmann v. Wilson, 477 U.S. 436 (1986) (filing of “successive”
petitions raising grounds identical to those raised and rejected on the mer-
its in prior federal petitions); Murray v. Carrier, 477 U.S. 478 (1986) (fail-
ure to raise issues on direct appeal); Smith v. Murray, 477 U.S. 527 (1986)
(same); McCleskey, 499 U.S. 467 (filing of “abusive” petitions raising
grounds available but not relied upon in an earlier federal petition); Cole-
man v. Thompson, 501 U.S. 722 (1991) (failure to comply with filing
deadlines in state postconviction proceedings). As the Court explained in
Schlup, these cases illustrate the “interplay between statutory language and
judicially managed equitable considerations in the development of habeas
corpus jurisprudence.” 513 U.S. at 319 n.35.
9892 LEE v. LAMPERT
ter, 395 F.3d at 599 (discussing Coleman v. Thompson, 501
U.S. 722, 750 (1991)). We agree with the Sixth Circuit that
“[a]bsent evidence of Congress’s contrary intent, there is no
articulable reason for treating habeas claims barred by the
federal statute of limitations differently.” Id.
[5] As with equitable tolling based on diligence and
extraordinary circumstances, see Holland, 130 S. Ct. at 2562,
we conclude that Congress intended for the actual innocence
exception to apply to AEDPA’s statute of limitations, see San
Martin, 633 F.3d at 1267-68; Lopez, 628 F.3d at 1230-31;
Souter, 395 F.3d at 599, 602.9 We presume that Congress
knew of the exception when it drafted AEDPA, and “absent
the ‘clearest command,’ ” we will not construe the statute to
displace that equitable authority. Holland, 130 S. Ct. at
2560-61 (quoting Miller, 530 U.S. at 340)). As the Court
warned in Holland:
The importance of the Great Writ, the only writ
explicitly protected by the Constitution, along with
congressional efforts to harmonize the new statute
with prior law, counsels hesitancy before interpret-
ing AEDPA’s statutory silence as indicating a con-
gressional intent to close courthouse doors that a
strong equitable claim would ordinarily keep open.
Id. at 2562 (internal citation omitted). It is difficult to imagine
a stronger equitable claim for keeping open the courthouse
9
Because this case does not present the question, we need not—and do
not—decide what diligence, if any, a petitioner must demonstrate in order
to qualify for the actual innocence exception recognized in this opinion.
Compare, e.g., Lopez, 628 F.3d at 1231 (requiring no showing of diligence
by a petitioner seeking equitable tolling on actual innocence grounds),
with Flanders, 299 F.3d at 978 (requiring a petitioner seeking equitable
tolling on actual innocence grounds to show either that a state-created bar-
rier prevented his timely discovery of relevant facts or that a “reasonably
diligent petitioner” could not have discovered such facts in time to file
within the limitations period).
LEE v. LAMPERT 9893
doors than one of actual innocence, “the ultimate equity on
the prisoner’s side.”10 Withrow v. Williams, 507 U.S. 680, 700
(1993) (O’Connor, J., concurring in part and dissenting in
part) (noting that the Supreme Court “continuously has recog-
nized that . . . a sufficient showing of actual innocence” is
normally enough, “standing alone, to outweigh other concerns
and justify adjudication of the prisoner’s constitutional
claim”). Indeed, “the individual interest in avoiding injustice
is most compelling in the context of actual innocence.”
Schlup, 513 U.S. at 324.11
2
An actual innocence exception to the limitations period is
consistent with AEDPA’s underlying principles. To the extent
the statute aims to eliminate delay in federal habeas review,
the Supreme Court’s Holland decision refutes the notion that
an actual innocence exception undermines AEDPA:
We recognize that AEDPA seeks to eliminate delays
10
It would seem odd indeed that, under Holland, a petitioner could
receive the benefit of equitable tolling for attorney error and yet be denied
habeas review upon making a credible showing of actual innocence. 130
S. Ct. at 2564; see also Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir.
2003). Notably, we already apply equitable principles to AEDPA’s statute
of limitations in a variety of contexts. See, e.g., Miles v. Prunty, 187 F.3d
1104, 1107 (9th Cir. 1999) (prison officials failed to timely prepare a
check for the court’s filing fee); Corjasso v. Ayers, 278 F.3d 874, 878 (9th
Cir. 2002) (district court improperly dismissed, and then lost, petitioner’s
§ 2254 motion); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003)
(petitioner’s mental incompetence prevented him from timely filing).
Surely if equitable tolling is appropriate in these contexts, untimely filings
by those whose claims invoke the “ultimate equity,” actual innocence,
should be excused.
11
We also bear in mind that this case concerns a first federal habeas
petition, the dismissal of which “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.” Lonchar v.
Thomas, 517 U.S. 314, 324 (1996).
9894 LEE v. LAMPERT
in the federal habeas review process. But AEDPA
seeks to do so without undermining basic habeas
corpus principles and while seeking to harmonize the
new statute with prior law, under which a petition’s
timeliness was always determined under equitable
principles. When Congress codified new rules gov-
erning this previously judicially managed area of
law, it did so without losing sight of the fact that the
“writ of habeas corpus plays a vital role in protecting
constitutional rights.” It did not seek to end every
possible delay at all costs.
130 S. Ct. at 2562 (quoting Slack v. McDaniel, 529 U.S. 473,
483 (2000)) (internal citations omitted). Nor does our holding
interfere with AEDPA’s other purposes, such as “curb[ing]
the abuse of the statutory writ of habeas.” H.R. Conf. Rep.
No. 104-518, at 111 (1996), reprinted in 1996 U.S.C.C.A.N.
944, 944. An actual innocence exception to the limitations
provisions does not foster abuse or delay, but instead recog-
nizes that in extraordinary cases, the societal interests of final-
ity, comity, and conserving judicial resources “must yield to
the imperative of correcting a fundamentally unjust incarcera-
tion.” Murray v. Carrier, 477 U.S. 478, 495 (1986) (internal
quotation marks omitted).
In Schlup, the Supreme Court explained that “the funda-
mental miscarriage of justice exception seeks to balance the
societal interests in finality, comity, and conservation of
scarce judicial resources with the individual interest in justice
that arises in the extraordinary case.” 513 U.S. at 324. The
exception “is altogether consistent . . . with AEDPA’s central
concern that the merits of concluded criminal proceedings not
be revisited in the absence of a strong showing of actual inno-
cence.” Calderon v. Thompson, 523 U.S. 538, 558 (1998).
3
Finally, the doctrine of constitutional avoidance requires us
to construe the statute, if possible, to avoid a serious constitu-
LEE v. LAMPERT 9895
tional question. See Pub. Citizen v. U.S. Dep’t of Justice, 491
U.S. 440, 466 (1989) (“It has long been an axiom of statutory
interpretation that where an otherwise acceptable construction
of a statute would raise serious constitutional problems, the
Court will construe the statute to avoid such problems unless
such construction is plainly contrary to the intent of Con-
gress.” (internal quotation marks omitted)).
As our sister circuits have observed, denying federal habeas
relief from an actually innocent petitioner would be “constitu-
tionally problematic.” Souter, 395 F.3d at 601-02 (collecting
cases); see, e.g., Wyzykowski v. Dep’t of Corr., 226 F.3d
1213, 1218 (11th Cir. 2000) (noting that barring a habeas peti-
tioner who can show actual innocence, but who filed after
AEDPA’s limitations period, “raises concerns because of the
inherent injustice that results from the conviction of an inno-
cent person, and the technological advances that can provide
compelling evidence of a person’s innocence” (footnotes
omitted)).
In Ferguson v. Palmateer we held that AEDPA’s limita-
tions period “is not a per se violation of the Suspension
Clause” and “does not render federal habeas an inadequate or
ineffective remedy.” 321 F.3d 820, 823 (9th Cir. 2003)
(emphasis added). Ferguson did not concern a successful Sch-
lup claim, which presents individual interests of “overriding
importance.” Schlup, 513 U.S. at 325. Indeed, in Schlup, the
Supreme Court noted:
[C]oncern about the injustice that results from the
conviction of an innocent person has long been at the
core of our criminal justice system. That concern is
reflected . . . in the “fundamental value determina-
tion of our society that it is far worse to convict an
innocent man than to let a guilty man go free.”
513 U.S. at 325 (quoting In re Winship, 397 U.S. 358, 372
(1970) (Harlan, J., concurring)). Given our holding, we need
9896 LEE v. LAMPERT
not revisit Ferguson‘s ruling on the Suspension Clause or
decide what other “grave constitutional concerns” would be
presented by the denial of federal habeas relief to an innocent
prisoner. See Souter, 395 F.3d at 602.
4
In short, Congress did not remove the equitable power of
federal courts in habeas proceedings. Nothing in the text or
structure of AEDPA indicates a contrary conclusion. Recogni-
tion of an actual innocence exception to AEDPA’s statute of
limitations is entirely consistent with AEDPA’s underlying
principles. The doctrine of constitutional avoidance further
buttresses our conclusion.
B
Neither of the State’s arguments to the contrary is persua-
sive. First, the State points out that AEDPA’s limitations pro-
visions say nothing of actual innocence, while other parts of
the Act expressly refer to it. True, AEDPA contains a more
exacting actual innocence exception for successive petitions
and evidentiary hearings, requiring that the factual predicate
of a claim could not have been discovered earlier and a show-
ing “by clear and convincing evidence” that “but for constitu-
tional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” 28 U.S.C.
§§ 2244(b)(2)(B); 2254(e)(2).12 That Congress adopted a more
stringent actual innocence exception for successive petitions
and evidentiary hearings does not evince a desire to exclude
the equitable exception in § 2244(d) for a first habeas petition.
Souter, 395 F.3d at 598-99. Rather, the absence of an actual
innocence trigger to § 2244(d)(1) suggests that Congress
12
The “clear and convincing” standard mirrors the test from Sawyer v.
Whitley, 505 U.S. 333, 336 (1992), which adopted a stricter standard than
Schlup’s “more likely than not” test. See House v. Bell, 547 U.S. 518, 539
(2006); see also Schlup, 513 U.S. at 326-27.
LEE v. LAMPERT 9897
intended not to alter the existing jurisprudential framework
that allowed for a showing of actual innocence to overcome
a procedural default. Id. at 599.
The State also suggests that recognizing an equitable
exception on the basis of actual innocence would conflict with
our case law, which sets a “very high” threshold for triggering
equitable exceptions, “lest the exceptions swallow the rule.”
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.
2009) (internal quotation marks omitted). Yet, today’s hold-
ing is entirely “consistent with our sparing application of the
doctrine of equitable tolling.” Id. As we discuss in more detail
later, and as the Supreme Court has stressed, habeas corpus
petitions advancing a credible claim of actual innocence are
“extremely rare.” Schlup, 513 U.S. at 321; see also House,
547 U.S. at 538; Souter, 395 F.3d at 600. The Schlup excep-
tion involves a “narrow class of cases . . . implicating a funda-
mental miscarriage of justice” because “a constitutional
violation has probably resulted in the conviction of one who
is actually innocent.” Schlup, 513 U.S. at 314-15, 321 (inter-
nal quotation marks omitted). Given that the exception is con-
fined to these extraordinary cases, there is little danger of it
swallowing the rule. The exacting requirements we have
imposed for the application of equitable tolling remain intact
and are not in conflict with an actual innocence exception.
C
[6] Thus, we join the Sixth, Tenth, and Eleventh Circuits
in holding that where an otherwise time-barred habeas peti-
tioner demonstrates that it is more likely than not that no rea-
sonable juror would have found him guilty beyond a
reasonable doubt, the petitioner may pass through the Schlup
gateway and have his constitutional claims heard on the mer-
its.
9898 LEE v. LAMPERT
III
We now consider whether Lee presents sufficient new evi-
dence of actual innocence to excuse his untimely filing and
permit review of his constitutional claims on the merits.
A
In order to present otherwise time-barred claims to a fed-
eral habeas court under Schlup, a petitioner must produce suf-
ficient proof of his actual innocence to bring him “within the
‘narrow class of cases . . . implicating a fundamental miscar-
riage of justice.’ ” 513 U.S. at 314-15 (quoting McCleskey,
499 U.S. at 494). The evidence of innocence must be “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.” Id. at 316.
[7] To pass through the Schlup gateway, a “petitioner must
show that it is more likely than not that no reasonable juror
would have convicted him in the light of the new evidence.”
Id. at 327; House, 547 U.S. at 538. This exacting standard
“permits review only in the ‘extraordinary’ case,” but it “does
not require absolute certainty about the petitioner’s guilt or
innocence.” House, 547 U.S. at 538 (quoting Schlup, 513 U.S.
at 327). As we have previously said, “where post-conviction
evidence casts doubt on the conviction by undercutting the
reliability of the proof of guilt, but not by affirmatively prov-
ing innocence, that can be enough to pass through the Schlup
gateway to allow consideration of otherwise barred claims.”
Sistrunk v. Armenakis, 292 F.3d 669, 673 (9th Cir. 2002) (en
banc) (citing Carriger v. Stewart, 132 F.3d 463, 478-79 (9th
Cir. 1997) (en banc)).13
13
Schlup incorporates the standard of proof of Murray v. Carrier, 477
U.S. 478 (1986), and therefore involves a different inquiry than mere suf-
ficiency of the evidence. See Schlup, 513 U.S. at 324, 330. As the
Supreme Court explained in Schlup, the Carrier standard differs from the
LEE v. LAMPERT 9899
Schlup requires a petitioner “to support his allegations of
constitutional error with new reliable evidence—whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not pre-
sented at trial.” Schlup, 513 U.S. at 324. The habeas court
then “consider[s] all the evidence, old and new, incriminating
and exculpatory,” admissible at trial or not. House, 547 U.S.
at 538 (internal quotation marks omitted); Carriger, 132 F.3d
at 477-78. On this complete record, the court makes a “ ‘prob-
abilistic determination about what reasonable, properly
instructed jurors would do.’ ” House, 547 U.S. at 538 (quoting
Schlup, 513 U.S. at 329).
B
With these principles in mind, we turn to the claims in this
case. In order to assess whether Lee has satisfied the stringent
requirements of Schlup, we must first examine the underlying
facts in some detail.
1
Daniel Hendricks and his wife hired Cheryll Lee to babysit
their three children. Cheryll watched the children in her apart-
ment, where three men spent time. Cheryll’s boyfriend, Rob-
standard of Jackson v. Virginia, 443 U.S. 307 (1979), applicable to claims
of insufficient evidence, in at least two respects. Schlup, 513 U.S. at 330.
First, while a Jackson analysis generally precludes assessment of witness
credibility, a habeas court applying Carrier “may have to make some
credibility assessments.” Id.; House, 547 U.S. at 538-39. Second, Jackson
asks whether a trier of fact “could,” i.e. has the power to, reach its conclu-
sion, while Carrier asks whether a trier of fact “would,” i.e. is likely to,
reach a particular conclusion. Schlup, 513 U.S. at 330; House, 547 U.S.
at 538 (“[T]he [Schlup] inquiry requires the federal court to assess how
reasonable jurors would react to the overall, newly supplemented
record.”). Hence, “though under Jackson the mere existence of sufficient
evidence to convict would be determinative of [a] petitioner’s claim, that
is not true under Carrier.” Schlup, 513 U.S. at 330.
9900 LEE v. LAMPERT
ert Nachand, lived with Cheryll. Her ex-husband, Larry Lee,
and his brother, petitioner Richard Lee,14 occasionally visited.
Robert and Larry both had been previously indicted for
molesting children.
On several occasions, while Cheryll left the children at the
apartment, Robert and Richard sexually abused four-year old
Matthew Hendricks.
Matthew began wetting his bed, throwing temper tantrums,
and crying that he did not want to go to Cheryll’s. Matthew’s
parents asked Cheryll to babysit the children in their home
rather than at her apartment. Matthew told his mother that on
several occasions while Cheryll left the Hendricks children at
her apartment, Robert had fondled and fellated Matthew, and
vice versa. His mother called the police and fired Cheryll.
Detective Chris Carter questioned Matthew with the aid of
anatomically correct drawings. Matthew recounted four to six
instances of abuse by Robert. According to Carter’s report,
which describes Matthew’s statements, “Matthew gave no
further disclosure of any other sexual abuse that occurred to
him or his sisters.”
Robert eventually entered into a plea bargain, pleading
guilty to sexual abuse and accepting a 28-month prison sen-
tence. In exchange, the prosecutor dropped a sodomy charge.
Several months after Matthew reported Robert’s abuse,
Matthew’s father Daniel saw Richard walking in the neigh-
borhood and asked Matthew whether Richard also had
molested him. Matthew affirmed that he had. Daniel brought
Matthew to the police station for an interview with Detective
John Fowler. Fowler used three anatomically correct dolls—
designated “Robert,” “Richard,” and “Matthew,” respectively
14
To maintain consistency with trial testimony, our recitation of the
facts often will refer to Richard Lee and others by their first names.
LEE v. LAMPERT 9901
—so that Matthew could demonstrate the sex acts that had
occurred between him and each man. Fowler photographed
the dolls, but did not otherwise record the interview.
Detective Fowler later questioned Cheryll about the allega-
tions against Richard. After an initial denial, Cheryll told
Fowler she left Richard with the children on at least three
occasions. Following one such occasion, Cheryll recounted,
Matthew told her that Richard had touched his “pee-pee.” She
confronted Richard about Matthew’s statement; he said the
touching must have occurred accidentally while he wrestled
with Matthew. Richard denied ever caring for the Hendricks
children or talking with Cheryll about Matthew’s statement.
2
Richard was indicted on two counts of first degree sexual
abuse and two counts of first degree sodomy. Before trial, the
defense moved to admit evidence of abuse by Robert (who,
by that time, had pled guilty) under Oregon Rule of Evidence
412, which prohibits the admission of a victim’s past sexual
behavior unless such evidence falls into one of the Rule’s nar-
row exceptions. The defense argued that Robert’s sexual acts
were relevant to Richard’s defense of mistaken identity, and
that it would violate Richard’s confrontation rights if he were
not able to cross-examine witnesses about Robert. The trial
court denied the motion because Matthew was well-
acquainted with the two men, Cheryll’s statement placed
Richard in Matthew’s presence at her apartment, and Mat-
thew’s statements to Cheryll tended to show that the conduct
occurred. Thus, the court ruled, Lee made an insufficient
predicate showing of confusion to warrant breach of Rule
412’s rape-shield protections.
3
At trial, the prosecution called five witnesses—Matthew
Hendricks, Cheryll Lee, Detective John Fowler, Katherine
9902 LEE v. LAMPERT
Walling, and Detective Jonathan Strong—and admitted as
exhibits drawings of human bodies and photos of the Fowler
interview. The defense called Daniel Hendricks as a witness,
asked Richard to show the jury tattoos on his arm and shoul-
der, and admitted as an exhibit Robert’s sentencing judgment.
On direct examination, Matthew initially stumbled in iden-
tifying petitioner, calling him “Robert—I mean, Richard.” He
testified that Richard had been at Cheryll’s house, and, with
the aid of human drawings, Matthew revealed how Richard
had touched him. He circled both the “pee-pee” and “bottom”
on the drawings and stated that, while Cheryll was away,
Richard had touched him in both places with his hand. The
touching occurred when Matthew was naked and Richard’s
shirt was removed. Matthew recalled telling his father, Cher-
yll, and Detective Fowler about what Richard did. He recog-
nized photos taken during the Fowler interview and identified
himself and “Richard” in a photo, but would not say what was
happening. Matthew said that when Richard touched him, he
could see Richard’s “stomach.”
The defense began cross-examination with questions about
Cheryll’s “friend named Robert.” Matthew remembered say-
ing “Robert—I mean, Richard” on direct and agreed that he
was getting the two “mixed up.” At that point, the prosecution
objected, and with the jury and Matthew removed from the
courtroom, the trial judge ruled that Rule 412 did not prevent
the defense from using Robert’s name to distinguish what
Richard did or did not do. When Matthew returned, the
defense asked, “you said—you said that’s Robert?” (A:
“[y]eah”) and whether Matthew “notice[d] anything about his
body?” or “his arms or his stomach” (A: “[n]o”).
On redirect, the prosecution asked, “Matthew, is this Rob-
ert?” (A: “[n]o”); “Who is this?” (A: “Richard”); and “is this
the person that did those things that you’ve drawn for us
today?” (A: “[y]eah”). On recross, the defense asked “you
said it was Robert; right? You said it was Robert?” (A: “No.
LEE v. LAMPERT 9903
Richard.”), and whether Matthew had talked with his parents
while out of the courtroom (A: “[y]eah”).
Cheryll Lee confirmed that Richard came to her apartment
a few times a month, before moving in with her. She left
Richard and Robert with the children at least three times;
Robert should have been sleeping at these times because he
worked the night shift. Two days after one of these occasions,
Matthew told Cheryll that Richard “touched” him on his “pee-
pee.” Cheryll told Matthew to go play, and later that day, she
confronted Richard about Matthew’s statement. Richard
explained that it “must have happened the other day when I
was wrestling with him when [she] went to the store.” They
did not discuss it further; Cheryll believed him.
On cross-examination, Cheryll confirmed that each time
she left Richard with the kids, Robert was there, too. The
defense also asked whether Matthew “said, ‘Richard did it’?”
(A: “[y]es”) and if Cheryll “[knew] if he meant Richard or
Robert?” (A: “he stated ‘Richard’ ”). Cheryll confirmed that
Matthew said only that he was touched, pointed downward,
and when asked, “Where were you touched?”, said, “Right
here. My pee-pee.”
Detective John Fowler’s testimony began with a review of
his investigation of Matthew’s case. He briefly spoke with
Matthew in a “soft interview room,” where Matthew pointed
to his groin and said Richard had touched him “where he
wasn’t supposed to.” Based on this disclosure, Fowler asked
Matthew and his father to come with him to the Children’s
Services Division, where Fowler could use anatomically cor-
rect dolls. Once they relocated, Fowler interviewed Matthew,
with his father present.15 Fowler documented the interview in
writing and with photographs.
15
According to Fowler, Matthew’s father encouraged Matthew to be
truthful, but otherwise did not participate in the interview.
9904 LEE v. LAMPERT
As direct examination continued, Fowler described using
“an adult and a child doll,” which Matthew used to show
Fowler how Richard had touched him. Fowler recounted Mat-
thew’s demonstration with the dolls and his statements—
specifically, Matthew: took the adult male’s hand and placed
it on the child doll’s penis and buttocks; put the adult doll’s
mouth to the penis of the child doll; said that Richard had
touched Matthew’s bottom with his mouth; said that Richard
had put his penis in Matthew’s mouth; said that Richard had
rubbed his penis on the “outside” of Matthew’s bottom; said
that Richard had rubbed his bottom with a “cup” and a “toy”;
said that when sexual touching happened “water” came out of
Richard’s “pee-pee”; and said that when Richard touched his
“pee-pee” it made Matthew “feel like he had to go to the bath-
room” and made him cry because he felt “sad.”
On cross-examination, the defense elicited that Fowler had
spoken with Matthew’s father a few times before the doll
interview. Matthew’s father wished to report disclosures his
son made to him. Next, the defense elicited that Fowler had
not recorded the interview by audio or video because it was
“discouraged” in Linn County.
The defense then asked about how Fowler phrased ques-
tions during the doll interview. The defense inquired whether
Fowler asked Matthew if the “water” described by Matthew
came out of “Richard’s pee-pee or Robert’s pee-pee?” (A:
“[c]orrect”). The defense again asked “Robert’s pee-pee?” (A:
“Richard’s or Robert’s”). At that point, the prosecution
objected on Rule 412 grounds. Outside the presence of the
jury, the defense explained that questioning Fowler about his
use of three dolls (Richard, Robert, and Matthew) during the
interview required clarification. The trial court agreed and
permitted questions about dolls depicting Robert as well as
Richard. When questioning resumed, the defense elicited that
there was a third Robert doll and that Fowler sometimes asked
Matthew questions about “Richard or Robert” or “Richard
and Robert.” Fowler said that Matthew did not demonstrate
LEE v. LAMPERT 9905
the same “specific sexual acts” with both adult dolls, but
affirmed that some of Matthew’s answers to questions
referred to both men.
On redirect, Fowler stated that Matthew identified the dolls
by their physical appearance (e.g. Richard’s doll was “darker
complected”) and attributed certain actions to Richard and
others to Robert. Matthew consistently indicated the things
Richard had done.
On recross, Fowler agreed that Matthew had not said any-
thing about oral sex in the “soft interview room.”
On further redirect and recross, the prosecution elicited that
Robert had been prosecuted and imprisoned for molesting
Matthew, and that Matthew had made an “additional disclo-
sure” about Richard. According to Fowler, Matthew was not
confused about what Robert or Richard had done to him;
“[h]e made specific disclosures about what Richard had done
that he did not talk about that had happened with Robert.” The
defense could not inquire into Matthew’s “very specific dis-
closures” about Robert because Fowler lacked personal
knowledge. The prosecution elicited that Matthew made alle-
gations specific to Richard, including contact between Rich-
ard’s mouth and Matthew’s “bottom” and contact with the
cup and toy. Fowler never found the toy, nor did he figure out
to what toy Matthew referred.
Katherine Walling testified that she also took her children
to Cheryll’s for baby-sitting, and saw Matthew and Richard
there.
Detective Jonathan Strong testified to his interview with
Richard. In that interview, Richard said that he visited Cheryll
during the period of the alleged abuse—while Robert lived
there—and later stayed with her. He knew where Matthew’s
parents lived and that Cheryll babysat the Hendricks children
there, but could not recall Cheryll bringing children to her
9906 LEE v. LAMPERT
apartment. Richard also denied that he: could recognize Mat-
thew; had cared for the Hendricks children three times in
Cheryll’s absence; spoke to Cheryll about Matthew’s disclo-
sure and his statement that they had wrestled; and had sexual
contact with Matthew.
On direct examination of Matthew’s father, Daniel Hen-
dricks, the defense elicited that Daniel had been convicted of
several past crimes of dishonesty, and that he contacted the
police regarding Matthew’s allegations. The defense then
asked about Matthew’s “very specific descriptions” of Rob-
ert’s acts. Daniel stated that in the case against Robert, Mat-
thew talked about oral sex being performed both ways, and
that the case against Robert had been going for at least three
months before Daniel called the police about Richard. Daniel
also recounted his son’s “very specific” allegations about
Richard, including that Richard had sodomized or “stuck it up
inside of” Matthew. The defense elicited that Matthew had
never said anything about Richard prior to his June or July
report, and that Daniel never sought a medical investigation
of Matthew.
On cross-examination, Daniel testified to Matthew’s
changes in behavior prior to his report about Robert. The
prosecution then asked about Richard. In Matthew’s first dis-
closure, which took place outside their home, Daniel saw
Richard and asked Matthew if Richard was staying at Cher-
yll’s. Matthew answered “yes,” and Daniel “asked him if
there had any—ever been any kind of sexual contact,” without
specifying, and Matthew affirmed there had been. Daniel
asked Matthew to “be honest with Dad and tell [him] every-
thing.” Matthew told his father that Robert and Richard both
had sex with him together, that Matthew had performed oral
sex on Richard, and that Richard had “touched” Matthew’s
genitals and Matthew’s “bottom had been hurt.” Daniel tested
Matthew’s perceptions of the two men, asking Matthew “[i]s
this Richard or was this Robert?” and adding that “Daddy
really needs to know, because we don’t want to cause any
LEE v. LAMPERT 9907
undue problems.” Matthew answered, “Well, yes, Daddy.
This was Richard.” The prosecution also elicited that Robert
went to prison.
On redirect, defense counsel pressed Daniel on whether he
—not Matthew—brought up the subject of sexual contact
with Richard (A: “[y]es”) and whether Matthew volunteered
any information prior (A: “[n]o”).
On recross, Daniel made clear that Matthew had alleged
oral sex with Richard two times; sodomy two times; and a
separate occasion where Robert and Richard had sex with
Matthew simultaneously.
During closing argument, the prosecution rebutted Lee’s
defense that Matthew could not have been molested by two
people or that he was confused. The prosecution recounted the
following evidence: Matthew’s initial disclosure about Rich-
ard to Cheryll; Cheryll’s testimony that both Robert and Rich-
ard frequented her apartment; the investigation of Robert;
Matthew’s disclosure about Richard to his father; Detective
Strong’s testimony about Richard’s denials of knowing or
watching Matthew at Cheryll’s; the pictures Matthew drew on
the witness stand; and the photographs of the dolls.
The defense reminded the jury of Robert’s guilty plea and
stressed that in March 1994, Matthew gave “extensive
descriptions” of Robert’s abuse without so much as mention-
ing Richard. Counsel portrayed the disclosure about Richard
as originating with Matthew’s father, reminding the jury of
Daniel’s past convictions for crimes of dishonesty and ques-
tioning how Daniel’s testimony could be true without medical
or physical verification. Counsel asserted that “children are
impressionable,” that “reality is often defined by their parents
and by adults.” The defense then recounted ways Matthew
exhibited confusion or gave vague testimony, and the differ-
ences between Matthew’s testimony (e.g., that Richard had
his pants on) and Fowler’s (e.g., where both dolls are naked).
9908 LEE v. LAMPERT
He noted that Matthew did not remember Richard’s tattoos
and testified “with his fingers crossed.” Finally, he reminded
the jury that the touching must have been for purposes of sex-
ual arousal or gratification—as opposed to wrestling or horse-
play.
The jury found Lee guilty on all counts.
C
Lee contends that three new items of evidence justify his
Schlup claim: (1) an expert opinion concerning the reliability
of some of the trial testimony, (2) a police report about Robert
Nachand, and (3) other evidence about Cheryll and Larry Lee.
He urges that in light of the new evidence, it is more likely
than not that no reasonable juror would have convicted him
of sexual abuse and sodomy. We disagree.
1
[8] Dr. Maggie Bruck, a Professor in the Division of Child
and Adolescent Psychiatry at Johns Hopkins University
School of Medicine, offered an expert opinion on the reliabil-
ity of statements by key witnesses at Lee’s trial. Evidence
“undercutting the reliability of the proof of guilt . . . can be
enough to pass through the Schlup gateway.” Sistrunk, 292
F.3d at 673.
Lee maintains that three aspects of Bruck’s report establish
areas of unreliability not heard by the jury. First, Bruck
emphasizes the relative reliability of a child’s initial report
and posits that in Matthew’s “first spontaneous[ ]” disclosure
about Robert in February 1994, Matthew detailed abuse by
Robert without mentioning Richard. However, months before
Matthew’s disclosures about Robert to his mother or his inter-
views about Robert or Richard, Matthew tried to report Rich-
ard’s molestation to his baby-sitter Cheryll. According to
Bruck, a child’s statement is “untainted” if “spontaneous,
LEE v. LAMPERT 9909
unprompted, and made in the absence of any previous sugges-
tive elements.” Matthew’s early, spontaneous disclosure about
Lee fits that description, and Bruck’s reasons for discrediting
it ring unpersuasive.16
Second, Lee points to Bruck’s testimony about the impor-
tance of video recording interviews with child victims. Detec-
tive Fowler’s failure to video record his interview with
Matthew was presented to the jury, however. More impor-
tantly, the lack of a video tape indicates a deficiency in the
investigation, but it does not affirmatively establish sugges-
tive interview tactics on Fowler’s part.
Finally, Lee relies on Bruck’s criticism of the use of ana-
tomical dolls with children who have experienced prior sexual
abuse. According to Bruck, the use of dolls can elicit “highly
unreliable information” and is inherently suggestive. Lee’s
jury lacked this context. Detective Fowler referred to dolls as
“tools,” and testified to his training and experience interview-
ing child victims of sexual abuse. Yet, while Bruck’s testi-
mony somewhat undermines the reliability of Matthew’s
statements to Detective Fowler, the jury heard evidence of at
least two disclosures by Matthew implicating Richard before
Fowler’s interview—namely, Matthew’s statements to Cher-
yll about Richard touching his groin and to his father about
Richard’s touching and sodomy.
[9] Bruck’s conclusions hinge on her speculation from the
trial record. For example, she suggests that Matthew’s father
may have held prior beliefs about Richard, coerced Matthew
into confirming those beliefs, and “tainted” Matthew’s testi-
mony before the police interview. “If this is correct,” Bruck
16
Bruck doubts that Cheryll could remember her conversation with Mat-
thew and notes that Cheryll’s testimony changed when police confronted
her. But the jury also heard testimony on Matthew’s disclosure from Mat-
thew and Detective Fowler, which corroborated Cheryll’s version of
events.
9910 LEE v. LAMPERT
wrote, “then Matthew’s statements to Detective Fowler were
unreliable.” (Emphasis added.) Similarly, Bruck notes that
Matthew’s father’s “non-verbal cues may have prompted Mat-
thew to say certain things” and “if the father had suggestively
interviewed Matthew . . . then the dolls would simply give
Matthew an opportunity to act out these previous unreliable
statements.” (Emphasis added.) Without a videotape, she
explains, Bruck could not evaluate the use of the dolls, ques-
tions asked, or answers given, and as a result, the reliability
of Matthew’s reported statements is “unknowable.” Yet, she
opines that regardless of interview technique, “Matthew’s
statements were tainted by the time the interview began.”
[10] Given these limitations of Bruck’s analysis, we cannot
say “it is more likely than not that no reasonable juror would
have convicted [Lee] in the light of the new evidence.” Sch-
lup, 513 U.S. at 327. Presented with her expert testimony, a
reasonable juror may well have rejected Bruck’s conclusions
or convicted Lee on the basis of Matthew’s statements to
Cheryll and his father.
2
According to Lee, the police report about Robert Nac-
hand’s abuse would have revealed the following “key” facts:
that Matthew was subjected to sexual abuse and sodomy by
Robert in fall 1993; that Matthew described Robert’s acts in
detail, in contrast to his “vague and ambivalent” trial testi-
mony; and that Matthew initially reported no abuse other than
by Robert.
[11] Much of this evidence was presented to Lee’s trial
jury. Matthew was questioned repeatedly about transposing
the names “Richard” and “Robert”; Cheryll testified that both
Robert and Richard were at home when she left the children
there; Detective Fowler acknowledged that he questioned
Matthew about both men, and he confirmed the charges
against Robert; Matthew’s father testified to his son’s com-
LEE v. LAMPERT 9911
plaints about Robert, including two kinds of oral sex; and the
defense introduced a copy of Robert’s judgment, which
showed his conviction for abusing Matthew and a dismissed
sodomy count. At closing argument, moreover, the defense
referred to Robert’s conviction; Matthew’s confusion about
the two men; that Matthew had not disclosed Richard’s abuse
in his first report; and that no medical examination had been
performed. The prosecution referred extensively to “Robert”
or “Nachand.”
[12] Even assuming, arguendo, that the police report con-
stituted “new reliable evidence . . . that was not presented at
trial,” Schlup, 513 U.S. at 324; Sistrunk, 292 F.3d at 673 n.4,
we must assess its likely impact on reasonable jurors in light
of the complete record, House, 547 U.S. at 538. Given all that
Lee’s jury heard about Robert at trial, the introduction of the
police report would not make it “more likely than not that no
reasonable juror viewing the record as a whole would lack
reasonable doubt” of his guilt. Id. at 554.
3
Lee’s remaining evidence only thinly supports his inno-
cence claim. Cheryll Lee’s initial denial that Richard Lee was
present around children might somewhat discredit her testi-
mony about Matthew’s disclosure, but Lee’s jury also heard
of that disclosure from Matthew and Detective Fowler. Infor-
mation about Larry Lee, on the other hand, has little relevance
to this case. Matthew never alleged abuse by Larry, nor has
petitioner seriously suggested that his brother was a culprit.
4
[13] Under Schlup, we must “assess how reasonable jurors
would react to the overall, newly supplemented record,”
including all the evidence Lee now proferrs. House, 547 U.S.
at 538. Having done so, we cannot conclude that “it is more
9912 LEE v. LAMPERT
likely than not that no reasonable juror would have convicted
him.” Schlup, 513 U.S. at 327.
IV
In sum, we hold that a petitioner is not barred by the
AEDPA statute of limitations from filing an otherwise
untimely habeas petition if the petitioner makes a credible
showing of “actual innocence” under Schlup v. Delo. This
construction continues the traditional equitable rule that Con-
gress did not disturb in passing AEDPA, is consistent with
AEDPA’s underlying philosophy, and avoids serious constitu-
tional problems inherent in a contrary statutory interpretation.
[14] However, in this case, because the petitioner did not
present sufficient evidence of actual innocence to permit him
to pass through the Schlup gateway and to argue the merits of
his time-barred claims, we reverse the judgment of the district
court and remand with instructions to dismiss Lee’s petition
as untimely. We need not, and do not, reach any other ques-
tion urged by the parties.
REVERSED AND REMANDED WITH INSTRUC-
TIONS.
Chief Judge KOZINSKI, concurring in the result:
Once again, we’re asked to consider whether a petitioner
may file an untimely writ of habeas corpus by making a
showing of actual innocence. Some day we may have to take
up this issue, but not today. By no stretch of the imagination
does Lee present a colorable claim of actual innocence. We
therefore have no occasion to consider whether his late filing
can be equitably tolled under AEDPA.
Lee presents an expert opinion, other evidence about Cher-
yll and Larry Lee and a police report to rehash claims made
LEE v. LAMPERT 9913
at trial. But to pass through the Schlup gateway, a petitioner
must show reliable evidence of his innocence that was not,
and could not have been, presented at trial. Schlup v. Delo,
513 U.S. 298, 324-28 (1995). This is a high threshold that is
rarely met. Id. Lee comes nowhere close.
Schlup pointed out three types of evidence that would pass
the threshold of reliability: exculpatory scientific evidence,
trustworthy eyewitness accounts and critical physical evi-
dence. Id. By enumerating the categories of evidence that
could prove innocence, the Supreme Court made clear that
less reliable kinds of evidence cannot support an actual inno-
cence claim. The Court certainly did not hold that a petitioner
may invoke Schlup whenever he wants a trial do-over.
For Lee to pass through the Schlup gateway, he must per-
suade us that every juror would have voted to acquit him. Id.
at 327. Lee has failed to show that even a single juror would
have changed his mind. If what Lee presents here is enough,
the Schlup gateway becomes more of a welcome mat. This
would eviscerate the doctrine of abuse of the writ. See
McCleskey v. Zant, 499 U.S. 467, 493 (1991).
We should leave the question of equitable tolling to a case
where petitioner presents the kind of evidence that could trig-
ger a Schlup inquiry. Because Lee does not meet the required
evidentiary threshold, there’s no reason—or justification—for
us to decide whether a petitioner with a credible claim of
innocence would receive the benefit of equitable tolling.