In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐3392
RICHARD M. ARNOLD,
Petitioner‐Appellant,
v.
MICHAEL A. DITTMANN, Warden,
Columbia Correctional Institution,
Respondent‐Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:15‐cv‐01524‐NJ — Nancy Joseph, Magistrate Judge.
ARGUED APRIL 5, 2018 — DECIDED AUGUST 24, 2018
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Richard M. Arnold appeals the
district court’s order dismissing as untimely his petition for a
writ of habeas corpus. There is no dispute that Arnold’s
petition was filed beyond the one‐year deadline established by
28 U.S.C. § 2244(d)(1), but Arnold alleges that his actual
2 No. 16‐3392
innocence of the crime for which he was convicted—repeated
sexual assault of a child—supports an equitable exception to
the time limit and allows his late petition. See McQuiggin v.
Perkins, 569 U.S. 383, 133 S. Ct. 1924 (2013). He relies on the
recantation affidavit of the key prosecution witness against
him—his son—as proof of his innocence. In view of the state
court’s finding that his son’s recantation was cumulative of
evidence that was put before the jury that convicted him, the
district court concluded that Arnold could not meet the
standard for actual innocence set forth in Schlup v. Delo, 513
U.S. 298, 115 S. Ct. 851 (1995). For the reasons that follow, we
vacate the district court’s judgment and remand for an eviden‐
tiary hearing on Arnold’s claim of actual innocence.
I.
In 2008, Arnold was convicted of repeated sexual assault of
a child in violation of Wis. Stat. § 948.025(1)(b). The child in
question was his son, M.A., who was the principal witness
against Arnold at trial. M.A. testified that on some 15 to 20
occasions between May 2004 and August 2005, when M.A. was
13 to 14 years old, Arnold initiated and engaged in mutual
masturbation with him. M.A. indicated that these sexual
assaults took place during weekend visits to a rural cabin
belonging to his grandfather (Arnold’s step‐father), at times
when his grandfather was occupied outside in the yard or in
one of the outbuildings on the property and M.A. and his
father were in the cabin alone. (M.A. lived with his mother—
who was not married to Arnold—but saw his father every
other weekend at the cabin, where his father was living at the
time.) On those occasions, M.A. testified, Arnold would
summon his son into his (Arnold’s) bedroom, where the two
No. 16‐3392 3
would watch television and/or play video games for awhile,
and eventually Arnold would initiate the sexual contact.
Arnold took the stand in his own defense and denied that
he had ever touched his son in a sexual manner. Arnold
testified that he did not spend any significant amount of time
in his bedroom and further denied that there were times when
he and his son were alone in the cabin.
Arnold and M.A. were the only two individuals with
personal knowledge of what had transpired between them,
and there was no forensic evidence supporting either party’s
account. So the case came down to a credibility contest
between father and son. Both had substantial criminal histo‐
ries: Arnold had five prior convictions, and M.A. (who was 17
years old at the time of trial) had a total of six prior convictions
and/or juvenile adjudications of delinquency. The fact but not
the nature of those convictions was disclosed to the jury.
M.A.’s grandfather, at whose cabin the alleged assaults took
place, professed it was possible there were times during M.A.’s
visits when Arnold and M.A. were alone in the cabin, as M.A.
had testified. But he could not otherwise speak to M.A.’s
allegations, beyond saying that M.A. had never indicated that
anything bad was happening to him.
Other witnesses could only recount M.A.’s out‐of‐court
statements about the alleged abuse. Detective Tom Makurat,
who had interviewed M.A. in February 2006, shortly after M.A.
had first discussed the abuse with a social services counselor,
testified as to what M.A. had told him about the assaults.
M.A.’s statements to Makurat were consistent with M.A.’s trial
testimony. Makurat also testified that when he questioned
4 No. 16‐3392
Arnold about his son’s allegations, Arnold had denied them
and insisted that he was never alone with his son in the cabin.
Two witnesses recounted prior alleged statements by M.A.
that were inconsistent with his trial testimony. Lila Mae Behm,
sister to M.A.’s paternal grandmother, testified that M.A. had
told her that nothing had happened between his dad and
himself. Philip Augsburger, who was “best friends” with
Arnold. R. 31‐3 at 508, testified that he had asked M.A. during
a telephone conversation, “Did this happen between you and
your father?” and “[h]e said no.” R. 31‐3 at 506. According to
Augsburger, M.A. explained that he had been angry with his
father when he made the charge.
M.A. in rebuttal testimony denied discussing the sexual
assault allegations in any detail with either Behm or Augs‐
burger and expressly denied making the inconsistent state‐
ments they attributed to him.
The defense also elicited testimony aimed at impeaching
the credibility of M.A.’s account more generally. There was
testimony, for example, that Arnold did not spend significant
time inside of the cabin or in his bedroom and typically slept
outside in a tent; that he was often away from the cabin
working, hunting, fishing, or dating his then‐girlfriend, Misty
Frank, and frequently went out with friends during the
evening (M.A. had testified that the assaults took place in the
afternoon or evening hours); that the video games were in the
living room of the cabin, where M.A. and his grandfather both
slept, rather than in Arnold’s bedroom; that M.A. would
become angry with his father if he did not spend enough time
with M.A. or agree to buy him something he wanted; and that,
No. 16‐3392 5
contrary to M.A.’s testimony, there were unusual characteris‐
tics of Arnold’s genital area, including a tattoo and multiple
piercings of Arnold’s penis and scrotum.
The jury convicted Arnold on July 17, 2008, at the conclu‐
sion of the four‐day trial. Because Arnold had previously been
convicted of a serious child sex offense (two counts of second
degree sexual assault of a child), Arnold qualified as a
“persistent repeater” under Wis. Stat. § 939.62(2m)(b)(2) &
(2m)(c), and the trial court was required to sentence Arnold to
a term of life in prison without the possibility of parole. The
judge imposed that sentence immediately after the jury
returned its verdict. Judgment was entered on August 12, 2008.
In October 2011, the Wisconsin Court of Appeals affirmed
both the conviction and Arnold’s initial request for post‐
conviction relief pursuant to Wis. Stat. § 974.02. State v. Arnold,
No. 2010AP1532‐CR, 2011 WL 5061617 (Wis. Ct. App. Oct. 26,
2011) (unpublished).1 The Wisconsin Supreme Court subse‐
quently denied Arnold’s petition for review. State v. Arnold,
810 N.W.2d 221 (Wis. Jan. 24, 2012).
In November 2011, shortly after the Wisconsin Court of
Appeals had affirmed Arnold’s conviction along with the
denial of his first request for post‐conviction relief, M.A. signed
1
Wisconsin law provides for a unitary review process pursuant to which
a defendant, following his conviction, first files a post‐conviction motion for
purposes of making any challenges to his conviction not already raised and
resolved at trial. Once that motion has been disposed of, he may file a
consolidated appeal of both his conviction and the ruling on his request for
post‐conviction relief. § 974.02; see Page v. Frank, 343 F.3d 901, 905–06 (7th
Cir. 2003).
6 No. 16‐3392
a notarized affidavit in the presence of two witnesses (apart
from the notary) in which he recanted the substance of his trial
testimony. At the time that M.A. reported the assaults by his
father, M.A. had been under the supervision of a juvenile court
and participating in a “Kids In Treatment” (“KIT”) program,
based on adjudications that M.A. himself had sexually as‐
saulted children. In his affidavit, which was directed to Ar‐
nold’s post‐conviction counsel, M.A. represented that he had
falsely accused his father in order to placate KIT personnel and
ensure his successful completion of and discharge from the KIT
program:
I [M.A.] would like to inform you that the charges
against my father Richard Arnold are false. We did
not have any kind of sexual contact. I am sorry for
saying those things happened. I never meant for any
of this to happen. But I felt pressured into saying
those things because if I did not tell them something
I would not have completed my KIT Program. So I
told them that my dad did that so I could get them
off my back and so I could get out of treatment and
off probation and out of coun[se]ling. My dad[‘]s
P.O. also pushed at me because my dad gave me
condoms so if I had sex it would be safe sex. His
P.O. put him in jail for that and said he was not a
good father because he gave me the condoms. I just
wanted everyone to leave me alone so I could get on
with my life and so we could be a family again. But
that didn’t happen because after that my dad[‘]s
P.O. wouldn’t let us have any contact with each
other. But I still continued to go there to see my dad
No. 16‐3392 7
[ ] and grandpa. But most of the time my dad was
with [M]isty and her son so I still did not get to
spend time with my dad. I just want everyone to
know that this was all a big mistake and it was not
true. I made the mistake of lying about this and it
cost all of us a[ ] lot. I hope that you can help get my
dad out of prison so he can come home where he
belongs. He has been locked up long enough for
something that he didn’t do.
I hope that by me coming forward with this now
that it’s not to[o] late for the truth to be told and to
set my dad free.
Appellate Ct. R. 6 at 21–22.
In September 2013, nearly two years after M.A. signed the
affidavit recanting the accusations against his father, Arnold
filed a pro se motion in state court seeking a new trial on the
basis of the affidavit. See Wis. Stat. § 974.06.2
The circuit court denied the motion without a hearing, R. 1‐
2 at 7, and the court of appeals affirmed. State v. Arnold, No.
2013AP2538, 2015 WL 540534 (Wis. Ct. App. Feb. 11, 2015)
(unpublished). The appellate court noted that the trial court
was not required to conduct a hearing on a motion for a new
trial premised on newly discovered evidence if the motion
itself was legally insufficient. Id., at *1. In the view of the
appeals court, Arnold’s motion was insufficient in that M.A.’s
affidavit did not constitute newly discovered evidence. Two
2
The record before us is silent as to the reasons for Arnold’s delay in filing
the motion.
8 No. 16‐3392
defense witnesses at Arnold’s trial—Behm and Augsburger—
had recounted statements by M.A. to the effect that the sexual
assaults did not occur, and M.A.’s credibility had also been
impeached in other ways. Id. Consequently, “[e]vidence that
the victim fabricated his accusations was before the jury.” Id.,
at *2.
That Arnold’s Wis. Stat. § 974.06 motion offered the
victim’s recantation in the form of an affidavit does
not change the substance of the recantation or
present a new challenge to the victim’s credibility.
The jury had the opportunity to judge evidence that
the victim recanted to other persons prior to trial
and was otherwise less than credible. The victim’s
affidavit offered the same type of evidence that was
before the jury. Therefore, the victim’s affidavit was
cumulative evidence and could not constitute newly
discovered evidence. Because the record shows that
Arnold was not entitled to relief on his
§ 974.06 motion, the circuit court did not err in
denying the motion without a hearing.
Id., at *2 (citations omitted). The Wisconsin Supreme Court
again denied review. 865 N.W.2d 502 (Wis. June 12, 2015).
Arnold then repaired to federal court seeking relief pursu‐
ant to 28 U.S.C. § 2254. In his pro se habeas petition, Arnold
contended that the Wisconsin courts’ handling of his request
for a new trial based on M.A.’s affidavit was inconsistent with
his rights under the Sixth and Fourteenth Amendments to the
Constitution, including his right to due process, and that his
No. 16‐3392 9
actual innocence of the offense of which he was convicted
independently entitled him to relief. R. 1, 2.3
On the State’s motion, the district court dismissed Arnold’s
petition as untimely. R. 17. Pursuant to 28 U.S.C.
§ 2244(d)(1)(A), a petitioner must seek habeas relief within one
year of the date his conviction becomes final. The court pointed
out because Arnold did not file a petition for certiorari after the
Wisconsin Court of Appeals affirmed his conviction in 2011
and the Wisconsin Supreme Court denied review in early 2012,
Arnold’s conviction became final on April 23, 2012 (once the
90‐day period for seeking certiorari from the U.S. Supreme
Court expired, see Ray v. Clements, 700 F.3d 993, 1003 (7th Cir.
2012)). Arnold thus had until April 24, 2013 to file his habeas
petition. He did not actually file the petition until December 21,
2015, more than two and one‐half years after the deadline.
Arnold’s second post‐conviction motion, based on M.A.’s
recantation affidavit, had no impact in this regard, as the
motion was not filed until after the one‐year deadline for
seeking relief in habeas corpus had already passed. R. 17 at
3–4.
The district court considered whether Arnold’s claim of
actual innocence could excuse the running of the limitations
3
Arnold’s petition also asserted that the state courts had misapplied,
and/or abused their discretion in applying, certain Wisconsin statutory
provisions and had deprived him of his rights to due process and equal
protection under the Wisconsin constitution. But because a section 2254
petition is aimed at vindicating a petitioner’s federal rights, errors of state
law are not cognizable on habeas review. See § 2254(a); see also, e.g., Dellinger
v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002).
10 No. 16‐3392
period, but concluded it could not. The court noted that under
Schlup v. Delo, supra, 513 U.S. at 327, 115 S. Ct. at 867, it was
Arnold’s burden to establish that “it is more likely than not
that no reasonable juror would have convicted him in light of
the new evidence” of his innocence. R. 17 at 4. Arnold’s claim
was founded on his son’s recantation affidavit, but the Wiscon‐
sin Court of Appeals had said that the affidavit “offered the
same type of evidence that was before the jury,” which by
virtue of witness testimony that M.A. had made pre‐trial
statements denying that his father had assaulted him, had
necessarily been called upon to evaluate the consistency and
credibility of M.A.’s account. R. 17 at 5 (quoting Arnold, 2015
WL 540534, at *2). The state court, in other words, had already
engaged in the type of analysis that Schlup mandated of the
district court, and had concluded that M.A.’s recantation
affidavit would not have affected the jury’s verdict. R. 17 at 5.
“Accordingly, because Arnold cannot prove that no reasonable
juror would have convicted him, Arnold cannot satisfy the
requirements for the actual innocence exception.” R. 17 at 5
(emphasis in original). The court went on to deny Arnold’s
request for a certificate of appealability. R. 17 at 5–6.
Arnold filed a notice of appeal, accompanied with a
renewed application for a certificate of appealability and a
request that we appoint counsel to represent him. After an
initial review of the district court’s order and the record on
appeal, this court found that Arnold had “made a substantial
showing of the denial of his right to due process, given new
evidence that the victim fabricated his testimony at trial.”
Appellate Ct. R. 8 (Kanne, J.). We therefore granted the request
for a certificate of appealability and Arnold’s request for
No. 16‐3392 11
appointed counsel. The State subsequently moved to vacate
that order, arguing that whatever potentially meritorious
constitutional claim Arnold might have, the district court’s
finding that Arnold’s habeas petition was untimely resolved
the appeal. We rejected the State’s motion, pointing out that
“the correctness of the court’s assessment of timeliness is
implicated in the constitutional claim we identified, since the
district court held that Arnold had not provided ‘new’ evi‐
dence demonstrating his innocence that would justify an
exception to the statute of limitations.” Appellate Ct. R. 10.
II.
There is no dispute that Arnold filed his habeas petition
beyond section 2244(d)(1)’s one‐year time limit, so his petition
is barred as untimely unless he can establish that he qualifies
for an exception to the time limit. Arnold is relying on his
alleged actual innocence to overcome the time barrier. Actual
innocence is an equitable exception that renders the time limit
set forth in section 2244(d)(1) inapplicable. McQuiggin v.
Perkins, supra, 569 U.S. at 386, 133 S. Ct. at 1928; see also Gladney
v. Pollard, 799 F.3d 889, 895 (7th Cir. 2015). As it happens,
Arnold also wants to pursue a freestanding claim of actual
innocence in his petition, so the allegations of actual innocence
are doing “double duty” in this case both as a gateway to
belated habeas review and as a substantive basis for granting
the writ. Perrone v. United States, 889 F.3d 898, 903 (7th Cir.
2018).
Schlup establishes the framework for evaluating a claim of
actual innocence as a gateway to review of a habeas claim that
would otherwise be foreclosed by untimeliness or some other
12 No. 16‐3392
type of procedural default. See McQuiggin, 569 U.S. at 386, 133
S. Ct. at 1928. A claim of actual innocence must be both
credible and founded on new evidence. Schlup, 513 U.S. at 324,
115 S. Ct. at 865. To be credible, the claim must have the
support of “reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical
physical evidence.” Ibid. That evidence must also be new in the
sense that it was not before the trier of fact. Ibid.; Gladney, 799
F.3d at 896, 898. The petitioner’s burden is to show that, in light
of this new evidence, it is more likely than not that no reason‐
able juror would have found him guilty beyond a reasonable
doubt. Schlup, 513 U.S. at 327, 115 S. Ct. at 867; see also id. at 329,
115 S. Ct. at 868. In evaluating the claim, the court is to conduct
a comprehensive assessment that takes into account any
reliable evidence probative of petitioner’s innocence or guilt,
even evidence that was previously excluded; the court is not
bound by the rules of evidence that would govern at trial. Id.
at 327–28, 115 S. Ct. at 867. It is not the court’s role to determine
independently what the petitioner likely did or did not do;
rather, its task is to assess the likely impact of the new evidence
on reasonable jurors. Id. at 329, 115 S. Ct. at 868. Although any
delay or lack of diligence by the petitioner in pursuing his
claim of actual innocence is not a bar to the claim, it is among
the factors that the court may consider in assessing the merits
of the claim. McQuiggin, 569 U.S. at 388–400, 133 S. Ct. at
1935–36.
Although a finding that Arnold has met the Schlup standard
would open the door to habeas review notwithstanding section
2244(d)(1)’s time limit, it is by no means clear that his claim of
actual innocence by itself would entitle him to a writ of habeas
No. 16‐3392 13
corpus. In order to obtain habeas relief, a state prisoner must
show that his conviction violates the Constitution, laws, or
treaties of the United States. Estelle v. McGuire, 502 U.S. 62,
67–68, 112 S. Ct. 475, 480 (1991). To date, an assertion of actual
innocence based on evidence post‐dating a conviction has not
been held to present a viable claim of constitutional error. See
Herrera v. Collins, 506 U.S. 390, 400–02, 113 S. Ct. 853, 860–61
(1993). The Court in Herrera assumed without deciding that the
Eighth Amendment precludes the execution of a person who
has demonstrated his actual innocence. Id. at 417, 113 S. Ct. at
869; see also id. at 419, 113 S. Ct. at 870 (O’Connor, J., concur‐
ring); id. at 429, 113 S. Ct. at 875 (White, J., concurring in the
judgment). But neither the Supreme Court nor this court has
yet indicated that an actual innocence claim could, standing
alone, support the issuance of a writ in a non‐capital case. See
McQuiggin, 569 U.S. at 392, 133 S. Ct. at 1931 (“We have not
resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.”); Tabb v.
Christianson, 855 F.3d 757, 764 (7th Cir.), cert. denied, 138 S. Ct.
365 (2017) (describing issue as “open to debate” and collecting
Supreme Court statements to that effect).4 Indeed, we recently
4
It is also unsettled what particular standard of proof a petitioner would
have to meet in order to be entitled to relief on a freestanding claim of
innocence. See Herrera, 506 U.S. at 417, 113 S. Ct. at 869 (“the threshold
showing for such an assumed right would necessarily be extraordinarily
high”); House v. Bell, 547 U.S. 518, 555, 126 S. Ct. 2064, 2087 (2006) (“The
sequence of the Court’s decisions in Herrera and Schlup—first leaving
unresolved the status of freestanding claims and then establishing the
gateway standard—implies at the least that Herrera requires more convinc‐
ing proof of innocence than Schlup.”); Tabb, 855 F.3d at 764.
14 No. 16‐3392
characterized as “doubtful” the notion that such a claim could
support relief on collateral review of a conviction. Perrone, 889
F.3d at 903.5
But before we could even take up this question, Arnold
would have to pass through the innocence gateway by making
the showing that Schlup requires. Unless he can overcome the
time bar on his habeas petition in that manner, there would be
no need and no authority for us to entertain his habeas
petition, whatever substantive claims for relief it might raise.
Both parties, ultimately, recognize the important role that
an evidentiary hearing will play in assessing Arnold’s claim.
Arnold’s central point on appeal is that the veracity of M.A.’s
affidavit has yet to be reviewed by any court, state or federal,
and that he is entitled to a hearing for that very purpose. For its
part, the State contends in the first instance that M.A.’s
recantation, even if it could meet the Schlup standard, could not
possibly meet the standard for granting relief on a freestanding
claim of actual innocence, whatever that standard might be, see
n.4 supra, when the recantation is considered along with all of
the evidence supporting Arnold’s conviction. But the State
concedes that if we are not convinced by that argument, we
should remand for an evidentiary hearing before the district
court. As we now explain, we agree with the parties that the
appropriate step for us to take at this juncture is to remand for
such a hearing.
5
Perrone dealt with a challenge per 28 U.S.C. § 2255 to a federal statutory
sentencing enhancement.
No. 16‐3392 15
Arnold has presented a plausible claim of actual innocence.
It is founded on M.A.’s formal recantation of his trial testi‐
mony, which necessarily amounts to new evidence in the sense
that the recantation was not before the jury that convicted him.
(More on that in a moment.) And M.A. himself has docu‐
mented his recantation in an affidavit he swore to and signed
in the presence of a notary and two other witnesses. Given that
the State’s case against Arnold rested primarily, if not exclu‐
sively, on M.A.’s testimony, his recantation as the accusing
witness necessarily presents the possibility that Arnold could
be factually innocent of assaulting his son.
We reject the State’s suggestion that M.A.’s recantation
could not meet the standard for relief on a freestanding claim of
actual innocence, however credible a factfinder might deter‐
mine it to be, such that it would be futile to proceed further.
The State presumes (not unreasonably) that the standard for
granting habeas relief on such a claim would be even more
demanding than the standard Schlup has established for
innocence as a gateway to habeas review. See n.4 supra. But the
State has not ventured a guess as to what incremental increase
in the burden of proof relief on a freestanding claim of actual
innocence might require beyond Schlup’s already demanding
standard (Schlup plus … what?). In that sense, the State’s
futility argument is really directed as much to the gateway
function of Arnold‘s innocence claim as it is to the habeas‐relief
function of the claim (assuming there is one).
No doubt the Schlup standard is an onerous one for the
petitioner to meet: the Supreme Court has indicated that it will
be the rare case that can successfully navigate through the
innocence gateway. See McQuiggin, 569 U.S. at 386, 133 S. Ct. at
16 No. 16‐3392
1928 (“[w]e caution … that tenable actual‐innocence gateway
pleas are rare”), citing Schlup, 513 U.S. at 329, 115 S. Ct. at 868;
House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077 (2006) (“the
Schlup standard is demanding and permits review only in the
extraordinary case”) (cleaned up); see also Blackmon v. Williams,
823 F.3d 1088, 1099 (7th Cir. 2016); Hayes v. Battaglia, 403 F.3d
935, 938 (7th Cir. 2005). Toward that end, Schlup emphasizes
that the evidence of a petitioner’s innocence must be reliable.
513 U.S. at 324, 115 S. Ct. at 865.
Arnold’s claim of innocence is not founded on DNA or
other scientific evidence that can be characterized as objective.
(Then again, neither was his conviction.) It is, instead, based on
the accusing witness’s post‐conviction representation that his
prior testimony was false, notwithstanding the oath he took at
trial to testify truthfully. Certainly there are reasons to treat
recantations generally with a healthy dose of skepticism. See
Mendiola v. Schomig, 224 F.3d 589, 593 (7th Cir. 2000); Dobbert v.
Wainwright, 468 U.S. 1231, 1233, 105 S. Ct. 34, 36 (1984)
(Brennan, J., dissenting from denial of certiorari) (“Recantation
testimony is properly viewed with great suspicion.”); Davis v.
Bradshaw, 2018 WL 3913103, at *1 (6th Cir. Aug. 16, 2018) (“A
recantation is not always a good reason for a new trial. The
recanting witness, in fact, may have told the truth the first
time. …”). M.A. himself told the jury that he loved his father
and simply wanted him to get the help he needed. R. 31‐2 at
218–19. It is entirely possible that M.A.’s recantation is the
product of guilt and/or pressure from family members rather
than a belated confession of what is true. Mendiola, 224 F.3d at
593. Indeed, a clinical psychologist who testified for the State
at Arnold’s trial opined that recantations by juvenile victims of
No. 16‐3392 17
familial sexual abuse are more likely to be explained by “very
strong statements from people about the damage that they [the
accusers] are doing to a person, the damage that they are doing
to the family, from friends who are saying, you’re weird if you
go ahead with this, et cetera.” R. 31‐2 at 340–41.6 These and
other considerations might lead a court, after the recantation is
fully aired in an adversarial hearing, to conclude that it is
insufficiently reliable to satisfy the Schlup standard. See, e.g.,
Jones v. Taylor, 763 F.3d 1242, 1249–51 (9th Cir. 2014) (conclud‐
ing after evidentiary hearing at which recanting witnesses,
including victim, testified that recantations were insufficient to
meet Schlup standard, let alone extraordinarily high standard
for relief on freestanding claim of actual innocence); Doe v.
Menefee, 391 F.3d 147, 165–73 (2d Cir. 2004) (Sotomayor, J.) (2‐1
opinion) (concluding after evidentiary hearing that recantation
of victim and testimony of petitioner were insufficiently
reliable to meet Schlup standard).
But given the extent to which the conviction rests on M.A.’s
testimony, we are not prepared to say that Arnold’s claim
cannot possibly meet the Schlup gateway standard (or what‐
ever incrementally higher standard might govern a freestand‐
ing claim of actual innocence) when no factfinder has yet heard
M.A. testify under oath on the matter of his recantation. M.A.’s
recantation, if it represents the truth, would by itself exonerate
6
The psychologist was of course not addressing the veracity of M.A.’s
affidavit, which post‐dated the trial. She had neither met M.A. nor
evaluated the reliability of his account of the abuse his father inflicted upon
him. That said, her testimony, and other expert opinion in a similar vein,
would be quite relevant to an evaluation of the credibility and reliability of
M.A.’s recantation and the strength of Arnold’s claim of actual innocence.
18 No. 16‐3392
Arnold as a factual matter. See, e.g., Lopez v. Trani, 628 F.3d
1228, 1231 (10th Cir. 2010) (concluding for purposes of certifi‐
cate of appealability that reasonable jurists might find claim of
actual innocence, supported by affidavit of rape victim
recanting trial testimony and averring sex was consensual, to
be sufficient under Schlup to overcome time bar to late habeas
petition); Cain v. Oregon, 546 F. App’x 641, 642 (9th Cir. 2013)
(non‐precedential decision) (finding victim’s unequivocal
recantation sufficient to satisfy Schlup).7 To say that there is no
7
Because Arnold’s conviction rests substantively on M.A.’s testimony, this
case may be contrasted with others in which the newly proffered evidence
of innocence did not by itself exonerate the petitioner or there was
additional evidence of the petitioner’s guilt apart from the testimony
supplied by a recanting witness. See, e.g., Davis, 2018 WL 3913103, at *11–*15
& n.13 (recantation of murder eyewitness did not present credible gateway
innocence claim where, inter alia, witness’s original inculpatory statements
were corroborated by other evidence, jury that convicted petitioner was
aware that witness had not only made inconsistent statements but had
previously recanted under oath and then rescinded recantation, and
additional evidence presented at evidentiary hearing regarding innocence
claim of petitioner’s co‐defendant had further corroborated witness’s
inculpatory version of events); Gladney, 799 F.3d at 899–900 (testimony of
new witness insufficient to meet Schlup standard, as witness did not see
fatal encounter between petitioner and victim and his testimony even if
credited would not compel reasonable juror to conclude that petitioner had
killed victim believing he was acting in self‐defense); Gandarela v. Johnson,
286 F.3d 1080, 1086 (9th Cir. 2002) (rejecting need for hearing on petitioner’s
innocence claim where “[n]one of the proffered evidence involves a
recantation by the victim or the other children who witnessed petitioner
kissing her.”); United States v. Baker, 824 F. Supp. 2d 918, 922 (D. N.D. 2011)
(denying motion to withdraw guilty plea based on victim’s recantation
where defendant previously “had numerous opportunities to maintain his
(continued...)
No. 16‐3392 19
point in proceeding to a hearing, given the rarity with which
actual innocence pleas satisfy the Schlup gateway standard and
the skepticism owed to recantations, would be to deem the
innocence gateway closed to any petitioner whose conviction
rests on the resolution of a credibility contest in favor of an
accusing witness who has since disavowed his testimony.
Whether Arnold’s claim of innocence meets the
Schlup standard can only be determined after M.A.’s new
account of events is subjected to adversarial testing under oath
before a factfinder, so that the credibility and reliability of the
recantation may be assessed. The Wisconsin courts themselves
never passed on the credibility of M.A.’s recantation. Cf.
Mendiola, 224 F.3d at 592–93 (state appellate court deemed
witness’s recantation to be highly incredible). Instead, the
Wisconsin appellate court found it unnecessary to hear M.A.
on the matter of his recantation, reasoning that it did not meet
the state criteria for newly discovered evidence to the extent it
was cumulative of evidence already before the jury. Arnold,
2015 WL 540534, at *2. As a result, no factfinder to date has
witnessed M.A. testify on the assertions made in his affidavit
and rendered a judgment as to whether M.A. is credible in his
recantation of the testimony he gave at trial. Of course, the
recantation itself is not the only evidence that must be consid‐
ered in weighing the merits of Arnold’s claim. See Schlup, 513
S. Ct. at 327–28, 115 S. Ct. at 867. But only after M.A. is heard
and his credibility is evaluated can a court weigh the strength
and reliability of the recantation against all of the evidence
7
(...continued)
innocence, but instead admitted his guilt”).
20 No. 16‐3392
bearing on Arnold’s guilt and determine whether Arnold has
met the demanding Schlup standard.
The district court, like the state court, presumed that no
such hearing was necessary, because the jury had heard
defense witnesses recount M.A.’s alleged pre‐trial, out‐of‐court
statements denying that Arnold had sexually assaulted him. To
that extent, the matter of M.A.’s inconsistent statements on the
question of Arnold’s guilt was already before the jury, and the
jury, in convicting Arnold, obviously believed his trial testi‐
mony nonetheless. Thus, in the state court’s view, M.A.’s post‐
trial recantation did not constitute new evidence for purposes
of his request for a new trial. And based on that understanding
of M.A.’s affidavit, the district court was convinced that
“Arnold cannot prove that no reasonable juror would have
convicted him [and therefore he] cannot satisfy the require‐
ments for the actual innocence exception.” R. 17 at 5 (emphasis
in original).
Neither party has considered what weight, if any, we must
give to the state appellate court’s finding that M.A.’s recanta‐
tion was cumulative. The court made that finding in resolving
a question of state law (whether the recantation entitled
Arnold to a new trial under section 974.06) rather than a
federal constitutional claim.8 The district court pointed out that
the state court’s analysis as to whether the affidavit constituted
“newly discovered” evidence under Wisconsin law was “in
line with” the Schlup requirements for the actual innocence
8
Wisconsin law does not currently recognize a claim of actual innocence
based on newly discovered evidence. See State v. McAlister, 911 N.W.2d 77,
86 (Wis. 2018) (declining to reach issue).
No. 16‐3392 21
exception to section 2244(d). R. 17 at 5. That is true in the sense
that both inquiries focus on whether the newly‐proffered
evidence would meaningfully alter the nature of the eviden‐
tiary mosaic informing the jury’s assessment of guilt. But given
that the state court was not resolving a federal claim, we are
not in the usual posture of considering whether the state
court’s analysis was contrary to, or constituted an unreason‐
able application of, Supreme Court constitutional precedents.
See § 2254(d)(1). We are instead considering whether Arnold
can show that he is entitled to the benefit of an equitable
exception to the time bar set forth in a federal statute (section
2244(d))—a purely federal matter. See McQuiggin, 569 U.S. at
394, 133 S. Ct. at 1932; Gladney, 799 F.3d at 895–96. So it is not
obvious that we should be bound by the state court’s finding
as to a separate question of state law. True, the state court’s
finding is partly factual, see § 2254(d)(2), although it does not
amount to a finding of historical fact, see Holsey v. Warden, Ga.
Diagnostic Prison, 694 F.3d 1230, 1259 (11th Cir. 2012) (op. of
Carnes, J.). If anything, it is a mixed finding of law and fact:
factual to the extent that it describes and compares the content
of the affidavit with the evidence already before the jury, and
legal to the extent it embodies an understanding of the pur‐
poses for which the evidence—old and new—was and is
offered and its relevance to the issues in the case. See Mosley v.
Atchison, 689 F.3d 838, 848–49 (7th Cir. 2012); Washington v.
Smith, 219 F.3d 620, 634 (7th Cir. 2000). In any case, the State
has not argued for any degree of deference to the state court’s
characterization of the recantation as cumulative; and for the
reasons that follow, we believe the state court was quite clearly
wrong to characterize it as such.
22 No. 16‐3392
The Wisconsin Court of Appeals’ decision treated M.A.’s
prior inconsistent statements regarding the sexual assaults as
recantations, and in that sense viewed them as the equivalent
of M.A.’s post‐trial affidavit disavowing his trial testimony, but
the inconsistent statements and the affidavit are two very
different things. A recantation is generally understood to be
the formal renunciation or withdrawal of one’s prior statement
or testimony. BLACK’S LAW DICTIONARY 1459 (10th ed. 2014).
We may set aside the obvious point that any out‐of‐court
statements that M.A. made prior to trial were not under oath
and assume that one could treat the statements Behm and
Augsburger attributed to M.A. as recantations of the report he
had given to the authorities—if he acknowledged making those
statements. But M.A. did not, in fact, acknowledge making
those statements to Behm and Augsburger; he unequivocally
denied having said to either Behm or Augsburger that nothing
had happened between himself and his father. R. 31‐2 at 267,
269, 275–76; R. 31‐3 at 623–24. And the jury, of course, could
well have chosen to credit M.A. on this point: Behm and
Augsburger, after all, were both close to Arnold (Behm was
Arnold’s aunt and Augsburger was his good friend). Given the
possibility that the jury could have believed the alleged
recantations to be a fiction concocted by defense witnesses, it
is inaccurate to say that M.A.’s “recantations” were already
before the jury. M.A.’s post‐trial affidavit, by contrast, indubi‐
tably is his own statement,9 and that affidavit specifically
disavows his own prior trial testimony. In no sense is that
recantation cumulative of the evidence before the jury. The
9
There is no suggestion that the affidavit is not genuine.
No. 16‐3392 23
recantation is, therefore, genuinely “new” evidence of Arnold’s
innocence that was not considered by the jury, which demands
a fresh assessment of all of the evidence bearing on Arnold’s
guilt for purposes of determining whether he meets the Schlup
standard.
The appropriate step, then, as the State recognizes, is for us
to remand the case to the district court for an evidentiary
hearing at which the credibility of M.A.’s recantation can be
assessed along with the probable impact that the recantation
would have had on reasonable jurors. As Schlup makes clear,
any reliable evidence bearing on the veracity of the recantation
and on Arnold’s guilt or innocence may be considered in
making these assessments.
Our decision to remand for a hearing should not be
understood as reflecting any finding or impression on our part
as to the reliability and credibility of the recantation. That is a
question for the factfinder. We hold only that, taking M.A.’s
affidavit at face value, Arnold has a plausible claim of actual
innocence entitling him to an evidentiary hearing.
If, upon hearing and weighing the evidence, the district
court concludes that no reasonable juror would have found
Arnold guilty beyond reasonable doubt in view of M.A.’s
recantation, then Arnold will be entitled to pursue his habeas
petition notwithstanding its tardiness under section 2244(d)(1).
At that point, it will be necessary to consider whether his
freestanding claim of actual innocence presents a viable claim
for relief in habeas and what standard of proof Arnold would
have to meet in order to prevail on that claim. If, on the other
hand, the court concludes that a reasonable juror could still
24 No. 16‐3392
have convicted Arnold beyond a reasonable doubt notwith‐
standing M.A.’s recantation, then his petition must be dis‐
missed as untimely.
III.
The judgment of the district court is VACATED, and the
case is REMANDED for further proceedings consistent with
this opinion.